Calcutta High Court (Appellete Side)
Samim Rahaman vs Nasima Khatun & Anr on 26 March, 2021
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 2280 of 2018
With
IA No. CRAN 1 of 2021
Samim Rahaman
-Vs-
Nasima Khatun & Anr.
For the Petitioner: Mr. Kumar Jyoti Tewari,
Mr. Manas Kumar Das,
Ms. Rajlakshmi Ghatak.
For the Opposite Party No.1: Md. Sarwar Jahan,
Mr. Firoze Hassan.
Heard on: March 15, 2020.
Judgment on: March 26, 2020.
BIBEK CHAUDHURI, J. : -
1. In the instant revision, legality, validity and propriety of the
judgment and order passed in Criminal Appeal No.21 of 2017 by the
learned Additional Sessions Judge, 3rd Court, Cooch Behar on 23rd July,
2018 affirming the order of interim monetary relief passed in Misc DV
Case No.137 of 2016 by the learned Judicial Magistrate, 1st Court at
Cooch Behar is under challenge.
2
2. Be it mentioned here that the learned Judicial Magistrate directed
the present petitioner to pay interim monetary relief to the opposite party
No.1 at the rate of Rs.6000/- per month for his wife and Rs.4000/- per
month for the minor child of the parties.
3. It is stated by the opposite party/petitioner herein that his marriage
with the opposite party No.1 was solemnized under Mohammedan Rights
and Customs on 10th November, 2014 and it was duly registered by the
Kazi according to the Bengal Mohammedan Marriages and Divorce
Registration Act, 1876. It is further stated by the petitioner that before his
marriage with opposite party No.1 the petitioner had another marriage
and a son who is living and being maintained by the petitioner from his
first marriage. The opposite party no.1 knew the said fact of marriage of
the petitioner before her marriage and the petitioner contracted marriage
with the opposite party No.1 on the assurance that she would take proper
care of the minor child of the petitioner like his biological mother. After
some days of marriage the petitioner noticed that the opposite party No.1
neglected to look after such minor child of the petitioner who was born
through his first marriage. On being asked she clearly stated that she
would not be able to look after the said child of the petitioner and left her
matrimonial home and started to reside at her paternal home. The
opposite party No.1 finally left her matrimonial home on 28th October,
2015. Finding no other alternative the petitioner divorced the opposite
party No.1 by pronouncing 3 talak on 22nd November, 2015 in presence of
witnesses. The said dissolution of marriage was duly registered on the
3
same day before the Muslim Marriage Registrar and Kazi office
Mathabhanga, Cooch Behar. A copy of the registered Talaknama was duly
sent to the opposite party No.1.
4. However in the year 2016 the opposite party No.1 filed Misc Case
No.137 of 2016 before the learned Judicial Magistrate, 1st Court at Cooch
Behar praying for interim monetary relief under Section 23 of the
Protection of Women from Domestic Violence Act, 2005.
5. By an order dated 24th April, 2017 the learned Judicial Magistrate,
1st Court at Cooch Behar granted interim monetary relief in favour of the
opposite party No.1/petitioner to the tune of Rs.6000/- for her and
Rs.4000/- for her child, total being Rs.10000/- per month.
6. The petitioner has challenged the maintainability of the said
proceeding under the Domestic Violence Act on the ground that there was
no domestic relationship between the parties on the date of filing of the
application under Section 23 of the said Act. The said application is not
maintainable under the facts and law and the opposite party No.1 is not
entitled to get any monetary relief from the petitioner.
7. Learned Advocate for the petitioner submits that courts below failed
to consider that the opposite party No.1 was not the wife of the petitioner
as their marital tie was severed by a divorce under the Mohammedan Law
on and from 22nd November, 2015 and there is no domestic relationship
between them. On the date of filing of the application under Section 12
read with Section 23 of the Domestic Violence Act, the opposite party No.1
was not an aggrieved person and the petitioner was not a respondent
4
within the definition of terms under the Domestic Violence Act. Therefore, the opposite party No.1 is not entitled to get any relief from the petitioner. The learned courts below committed gross illegality and material irregularity in deciding the application under Section 23 of the Domestic Violence Act and appeal under Section 29 of the said Act.
8. In support of this contention learned Advocate for the petitioner relies on a decision of the Hon'ble Supreme Court in the case of Inderjit Singh Grewal vs. State of Punjab & Anr. reported in (2011) 12 SCC
588. In the said report marriage between the parties was dissolved by mutual consent. Subsequently by filing an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, the wife challenged the decree of divorce. The Hon'ble Supreme Court held that the application under Section 12 of the said Act challenging a decree of divorce is not maintainable and would amount to abuse of process of court. The wife cannot claim that the marriage is still subsisting and also she cannot get any relief under the Protection of Women from Domestic Violence Act.
9. The learned Advocate for the petitioner further relies on a decision of the Bombay High Court in the case of Sadhana vs. Hemant reported in 2019 SCC OnLine Bom 659. The fact of the aforesaid reported decision is that the marriage between the parties was dissolved by a decree of divorce on 30th June 2008, in the year 2009 the wife/applicant filed an application under Section 12 and 18 of the DV Act alleging domestic violence by the respondent/husband. The said application was dismissed 5 on the ground that there was no domestic relationship between the parties. The said order passed by the learned Magistrate was affirmed by the learned Additional Sessions Judge, Nagpur in appeal. It was contended on behalf of the applicant that both the existing relationship between the parties as well as past relationship are covered under the definition of "domestic relationship". Hence, woman who is divorcee has remedy available to initiate proceedings under the Act. Bombay High Court held that there was no domestic relationship on the date of filing of the application under the DV Act and therefore the applicant/wife is not entitled for any protection under the said Act.
10. Md. Sarwar Jahan, learned Advocate for the opposite party No.1/wife submits that the claim of the petitioner of pronouncement of talaq to the opposite party No.1 is not an irrevocable form of talaq and therefore it is not binding upon the opposite party No.1.
11. In order to substantiate his argument it is submitted by the learned Advocate for the opposite party No.1 that the Mohammedan Personal Law recognizes two modes of talaq, viz talaq-ul-Sunnat and Talaq-ul-Biddat.
12. Talaq-ul-Sunnat further sub-divided into Talaq-i-Ahasan and Talaq- i-Hasan. The requirement of Ahasan Talaq are:-
i. Marriage must be consumed.
ii. A single pronouncement of talaq must be made. iii. Such pronouncement must be made during tuhr i.e., the period of purity between menstruations. 6 iv. The requirement of pronouncement of Talaq should be made during tuhr does applies to an oral divorce, but it does not apply to a written Talaq.
v. The requirement that pronouncement of Talaq should be made during tuhr does not apply to a wife who has crossed the age of menstruation or the parties have been away from each other for a long time, or when marriage has not been consummated.
vi. There must be no sexual intercourse during tuhr. vii. There must be no sexual intercourse during the period of Iddat. In case of a pregnant woman, there must be no sexual intercourses till the birth of the child. Thus talaq means pronouncing of single talaq during the period of purity following abstinence of sexual intercourse during the period of Iddat.
13. On the other hand, the requirement of Hasan Talaq is that the pronouncement of talaq should be made during three successive Tuhrs with abstinence of sexual intercourse during the period between first, second and third tuhr.
14. In the instant case the petitioner made first pronouncement of talaq on 15th March, 2015 then on 29th June, 2015 and finally on 22nd November, 2015. It is contended by the petitioner that he divorced his wife by pronouncing Hasan talaq. But Hasan Talaq could be pronounced by single declaration of talaq by the husband during tuhr followed by 7 abstinence from sexual intercourse during the period of tuhr. Thereafter during second and third successive tuhr, the husband requires to pronounce talaq with abstinence from sexual intercourse.
15. In the instant case the petitioner divorced the opposite party No.1 by pronouncing single talaq with abstinence from sexual intercourse for more than three months.
16. Though in a proceeding under Section 12 of the Protection of Women from Domestic Violence Act, it is not required to go into the deep of the question as to whether the opposite party No.1 was lawfully divorced or not, it is prima facie found from the registered talaqnama that after pronouncement of three talaqs followed by abstinence from sexual intercourse for more than three months, i.e., during the period of iddat, final pronouncement of talaq becomes talaq-i-bain or irrevocable talaq. In view of the said fact this Court prima facie holds that the petitioner divorced his wife pronouncing talaq under Mohammedan Personal Law.
17. It is also pointed out by the learned Advocate for the opposite party No.1 that talaq given by the petitioner to the opposite party is illegal and invalid as it was pronounced during the pregnancy of the opposite party No.1.
18. This court in exercise of revisional jurisdiction has no scope to adjudicate the issue as to whether talaq pronounced by the petitioner to the opposite party No.1 is legal, valid and binding upon the parties. Moreover, in a proceeding under Section 12 of the Domestic Violence Act, the Court does not have jurisdiction to adjudicate as to whether divorce 8 by pronouncing talaq is legal and binding or not [See: Indrajit Singh Grewal (supra)]. The issue is left open for adjudication at the time of final disposal of the application under Section 12 of the Domestic Violence Act. The trial shall decide prima facie as to whether the petitioner divorced the opposite party No.1 or not while adjudicating the question as to whether the opposite party No.1 is entitled to monetary relief under Section 12 of the Domestic Violence Act.
19. At the same time relying on a decision of the Hon'ble Supreme Court in the case of Juveria Abdul Majid Patini vs. Atif Iqbal Mansoori & Anr reported in 2014 (10) SCC 736, this Court can safely hold that a divorced wife is included in the definition of aggrieved person. An application under Section 12 seeking relief under Sections 18 and 23 of the Domestic Violence Act is maintainable if the domestic violence had taken place when the wife lived together in shared household with her husband through relationship in nature of marriage.
20. In the case of Prabir Kumar Ghosh & Ors. vs. Jharna Ghosh & Anr. reported in 2016(2) CalLJ 154, a Coordinate Bench of this Court had the occasion to consider the question as to whether a divorced wife is entitled to claim relief under Section 12 of the Domestic Violence Act for the reason that after divorce the wife had no occasion to live with her husband in the shared household and there was no scope of domestic violence after divorce. This Court held in paragraph 17 of the said judgment :
9
"If economic abuse is evident in respect of an aggrieved person, who was in a domestic relationship and in the event, such economic abuse continues from day to day, the aggrieved person, in my considered opinion, would be entitled to institute a proceeding under Section 12 of the Act of 2005 for necessary relief."
21. In her application under Section 23 of the Domestic Violence Act for interim monetary relief it is stated by the opposite party No.1/wife that her marriage was contradicted under the Mohammedan Law with the petitioner herein on 10th November, 2014. After her marriage she came to know that the petitioner was previously married and there was a male child from his first marriage. He married the opposite party No.1 after giving divorce to his first wife. It is further stated by the opposite party No.1 that after her marriage she became pregnant but her husband used to put pressure on her for abortion. He was subjected to physical and mental torture.
22. It is prima facie found from the record that the petitioner divorced the opposite party No.1 finally on 22nd November, 2015. Since then they are living separately. It is also found from the record that the opposite party No.1 has been residing in the house of her husband with her minor child. Therefore, the opposite party No.1 at present is now entitled to monetary relief for the maintenance of her minor child who was born in the wedlock between the petitioner and the opposite party No.1. 10
23. For the reasons stated, the impugned order passed by the learned Additional Sessions Judge, 3rd Court at Cooch Behar is set aside and modified in the following manner:
24. The petitioner herein shall pay monetary relief for the maintenance of the child who was born in the wedlock between the petitioner and the opposite party No.1 at the rate of Rs.6000/- per month till the disposal of Misc DV Case No.137 of 2016.
25. The order of monetary relief which was granted by the learned Judicial Magistrate, 1st Court at Cooch Behar for the opposite party No.1 and affirmed by the learned Additional Sessions Judge, 3rd Court at Cooch Behar is set aside.
26. The revisional application is thus allowed in part on contest however, without cost.
(Bibek Chaudhuri, J.)