Delhi District Court
Smt. Saida Begum vs Sh. Farasat Khan on 12 November, 2010
: 1 :
IN THE COURT OF MS. SHUCHI LALER, MM
(MAHILA COURTS), KKD DELHI
CASE NO. 270/03
IN THE MATTER OF
Smt. Saida Begum
w/o Sh. Farasat Khan
s/o Sh. Haji Mehmood Khan
r/o H. No. A268, Shastri Park,
(Theka), PS Seelampur
Delhi - 110 053. .......... petitioner
Versus
Sh. Farasat Khan
s/o Sh. Israt Khan
r/o Mohalla Jamai Pura,
Saharanpur Road,
Before Rashid Gate, Near Noorani Masjid,
c/o House of Riyaz, Bhagre Wale,
Loni, Distt. Ghaziabad, UP. .......... respondent
Date of institution : 27082001
Date on which the judgement has been reserved :12112010
Date of judgement : 12112010
PETITION U/S 125 CR.P.C. FOR THE MAINTENANCE
ON BEHALF OF THE PETITIONERS
CASE NO. 270/03 P........... 1/18
: 2 :
JUDGEMENT
Vide this judgement, I shall decide the petition U/s 125 Cr.P.C. for grant of maintenance moved by petitioner wherein it is stated that petitioner got married to the respondent on 27041997 as per Muslim Rites & Customs before a registered Qazi and before the marriage, at the occasion of engagement, the parents and relatives, presented the articles and cash to the respondent and to his parents, thereafter, the parents and relatives of the petitioner again presented articles at the occasion of sending Lal Khat and thereafter at the time of marriage, all the marriage items, jewellery and cash were given to the respondent, which was duly signed by his uncle Anish Khan, however, the respondent and his family members were not satisfied. It has been alleged that after few days of the marriage, the respondent, his father Israt Khan, mother Sameem Begum, Aslam Khan, Sarafat Khan and Nanads Asma Khatoon and Neelam Khatoon had treated the petitioner with cruelty and starting using ill words by giving bad names to her. It has been alleged that on 09012001, the respondent gave merciless beatings, by fists and kicks, to the petitioner in the presence of her fatherinlaw, motherin CASE NO. 270/03 P........... 2/18 : 3 : law, devar and nanads and then threw a full glass of water on the face of the petitioner due to which, the front upper teeth of the petitioner was broken. It has been averred that on 22082001, after staying more than six months at her parent's home at Delhi, the petitioner was beaten up by the respondent mercilessly where she was admitted in the hospital Loni, Distt. Ghaziabad, UP, but, the matter was compromised due to the intervention of the Biradari people at police station, Loni, Distt. Ghaziabad on 22082001 and since then the petitioner is residing at her parental home. It has been further alleged that on 26082001 at about 9.00 p.m., the respondent and his family members came to the petitioner at Shastri Park, Delhi with the intention to finish her and threw kerosene oil on the petitioner. The brother of the petitioner had already given a written complaint to the police in this regard. It has been stated that the respondent and his family members had refused to keep the petitioner. It has been further stated that the petitioner has no source of income and the petitioner is not in a position to maintain herself and she is totally dependent upon her parents and brother. It has been claimed that the respondent has good source of income as he is doing business of tyres by CASE NO. 270/03 P........... 3/18 : 4 : which the respondent is earning Rs.500/ per day i.e. Rs.15,000/ p.m. and as such maintenance @ Rs.5,000/ p.m. for the petitioner is prayed.
2. Reply has been filed wherein it is stated that the petitioner is not entitled to any maintenance from the respondent as the petition has been filed without jurisdiction as petitioner is residing at Loni, Ghaziabad, UP and not at Shastri Park, Delhi. The respondent has alleged that the petitioner has been divorced by him on 22082001 in the presence of witnesses by pronouncing talaq talaq talaq (three times) and she has already received mehr amount, maintenance of iddat period and istridhan from the respondent. It has also been stated that the respondent had sent the talaqnama to the petitioner vide telegram dated 28042003 and the respondent also served the petitioner with legal notice regarding written information of talaq through his advocate vide registered A/D post dated 19052003 duly served on petitioner the Imam Fatihpuri Masjid, Delhi declaring talaq between the parties on 25082001, moreover, the petitioner also accepted her divorce in her statement given before the police during inquiry conducted by circle officer, Sh. Ajay Sahdev, Ghaziabad as per report dated 19012002. It has been stated that the CASE NO. 270/03 P........... 4/18 : 5 : marriage of the petitioner with the respondent was performed without dowry. The respondent stated that he made every effort to keep the petitioner happy. The respondent denied the allegations of cruelty, torture and harassment and specifically denied the incident of 09012001, 22082001 and 26082001. The respondent has stated that the petitioner cannot be kept by him as he had already divorced her in accordance with Muslim Law. The respondent has stated that on 22082001, the petitioner came alongwith her brother and father and 34 bad elements and started demanding Rs.20,000/ from the respondent and when the respondent refused, they all started beating him and pressed him to pronounce triple talaq. It has been claimed that in the presence of witnesses Mohd. Akil, Mohd. Imtaq, Mohd. Shahid and Mohd. Izhar, the respondent divorced the petitioner by pronouncing triple talaq. Further, the petitioner received her entire mehr amount and maintenance for the iddat period from the respondent on the same day. The respondent has stated that the petitioner is engaged in the work of stitching and embroidery at home and is earning more than Rs.3,000/ p.m. The respondent has claimed himself to be a casual labourer, earning Rs.1,500/ p.m. CASE NO. 270/03 P........... 5/18 : 6 :
3. Vide order dated 17122004, the application of the petitioner for interim maintenance has been dismissed by the Ld. Predecessor Judge.
4. In support of her case, the petitioner has examined herself as PW1 and has tendered her evidence by way of affidavit wherein she has reiterated the facts stated in her petition. In her cross examination, PW1 stated that her father is a Mazdoor and he works on daily wages. PW1 stated that she was living at Loni at the time of her marriage. PW1 deposed that in October, 2000, her mother in law stated to her nandoi that she wants to get the respondent married again as the petitioner was unable to conceive. PW1 also deposed that on 09012001, she wanted to go to her parental home but, the respondent and his family members did not let her go and during the quarrel, the respondent threw the water on the face of the complainant and her tooth was broken. PW1 stated that she has not received any amount of mehr for maintenance for iddat period after divorce. PW1 denied the suggestion that the complete mehr amount and maintenance for the iddat period and her istridhan have been received by her in the presence of witnesses. PW1 stated that she does not know to stitch clothes and cannot do embroidery work. PW1 CASE NO. 270/03 P........... 6/18 : 7 : denied the suggestion that she is earning Rs.3,000/ p.m. by doing the work of stitching and embroidery. PW1 further denied the suggestion that the respondent is not doing the work of sale and purchase of tyres and is not earning Rs.15,000/ p.m. PW1 further denied the suggestion that the respondent is a casual labouer and is earning Rs.1,500/ p.m. and he has the liability to maintain his mother and younger brothers and sisters. PW1 also denied the suggestion that she is residing with her parents at Loni. The father of the petitioner, Sh. Hazi Mohd. Khan, appeared as PW2 and tendered his evidence by way of affidavit as Ex.PW2/A bearing his signatures at pointA & B. In his cross examination, PW2 stated that he is residing at Bhagirathi Vihar, New Mustafabad, Delhi in one room since 01082008, which has been taken on rent by him @Rs.1,000/ p.m. PW2 denied the suggestion that he is not residing with his wife and the petitioner at Delhi and he is residing in his own house at Loni, Distt. Ghaziabad. PW2 stated that he was living in Loni at the above address in the year 2001. The landlord of the petitioner Sh. Mohd. Aneesh appeared as PW3 and tendered his evidence by way of affidavit as Ex.PW3/A bearing his signatures at pointA & B. In his cross CASE NO. 270/03 P........... 7/18 : 8 : examination, PW3 stated that the residential accommodation at Bhagirathi Vihar, Main 33 Feet Road is in the area of 100 sq. yards and he know the father of the petitioner for past 56 years. PW3 stated that he is not issuing any rent receipt to the father of the petitioner and the father of the petitioner is paying rent in cash. PW3 denied the suggestion that he has not given any room on rent to the petitioner and the petitioner is not residing in the house owned by PW3.
5. In rebuttal, the respondent has examined himself as RW1 and has tendered his evidence by way of affidavit, which is Ex.RW1/A. RW1 in his cross examination stated that he has not married again nor he has any son from the second marriage. RW1 stated that he is working with one Sh. Aslam at Loni where artificial jewelery is being manufactured with animal bore and he is commanding an income of Rs.2,500/ p.m. RW1 stated that he is illiterate. RW1 denied the suggestion that he is also doing the work of sale and purchase of old tyres and is earning Rs.1,5000/ p.m. RW1 stated that he has given Rs.5,000/ as Mehr amount and Rs.2,000/ as maintenance for iddat period and he has also returned the dowry articles. RW1 stated that no receipt CASE NO. 270/03 P........... 8/18 : 9 : was prepared or given by him at the time of giving Rs.5,000/, Rs.2,000/ and dowry articles. RW1 denied the suggestion that no such amount and dowry articles have been given by him to the petitioner. The neighbour of the respondent Mohd. Akil appeared as RW2 and has tendered his evidence by way of affidavit, which is Ex.RW2/A. RW2 in his cross examination stated that in his presence, the respondent had divorced the petitioner three times, however, the respondent had not paid the mehr amount to the petitioner in his presence. He stated that the dowry articles were given to the petitioner in his presence. RW2 denied the suggestion that he is deposing falsely at the instigation of the respondent. The other neighbour of the respondent Mohd. Iqbal appeared as RW3 and has tendered his evidence by way of affidavit, which is Ex.RW3/A. RW3 in his cross examination stated that the divorce between the parties had taken place in his presence and the dowry articles and the maintenance was given in his presence but no receipt was prepared and he had not signed any receipt. RW3 denied the suggestion that he has stated the facts about the talaq between the parties upon the instigation of the respondent.
CASE NO. 270/03 P........... 9/18
: 10 :
6. I have heard the Ld. Counsels for the parties and perused the record with their assistance.
7. At the outset, it is incumbent upon this court to decide the issue of territorial jurisdiction. The respondent has challenged the territorial jurisdiction of this court to entertain and try the present petition on the ground that the petitioner is residing at Loni, District Ghaziabad and not in Delhi. In the judgement titled as Darshan Kumari Vs. Surender Kumar (1995) 4 (Supp) SCC 137 the Hon'ble Supreme Court of India has held that in a petitioner u/s 125 Cr.P.C. even temporary residence is sufficient to confer jurisdiction on Magistrate at that place or of the district concerned. The petitioner has examined her father, who deposed that he is residing as tenant in property no. A225/9, Gali no. 9, Block A, Bhagirathi Vihar, New Mustafabad, Delhi. In his cross examination, the father of the petitioner / PW2 denied the suggestion that he is not residing with his wife and daughter in Delhi and he has not taken the aforesaid property on rent. The petitioner has also examined her landlord Mohd. Anees as PW3, who has deposed that the petitioner alongwith his father is residing on rent in teh said property CASE NO. 270/03 P........... 10/18 : 11 : since 01092008. PW3 in his cross examination denied the suggestion that the petitioner is not residing on rent in the said property. The respondent has neither filed on record any document nor produced any witness to prove that the petitioner is a resident of Loni, District Ghaziabad and the petitioner has never resided at Delhi. The landlord of the petitioner could withstand the rigors of cross examination. As the landlord of the petitioner has categorically deposed that the petitioner alongwith her parents is residing at New Mustafabad, Delhi on rent and in the absence of any cogent evdience to the contrary being led by the respondent, it is established on record that the petitioner has her temporary residence at Delhi, which is sufficient to confer territorial jurisdiction on this court to try or entertain the present case.
7. In order to decide the claim of maintenance the following are required to be proved:
a. relationship with the respondent Wife/child/father/mother as the case may be, b. the ground for her residing separately, which should be reasonable and sufficient to make her entitled for the relief, CASE NO. 270/03 P........... 11/18 : 12 : c. the factum of neglect on behalf of the respondent, d. incapability of petitioner to survive on her own and capability of respondent to make provision for the maintenance.
(a) It is an admitted case of the parties that their marriage was solemnized on 27041997. The respondent / RW1 has deposed that he has pronounced triple talaq to the petitioner on 22082001 in the presence of witnesses and the petitioner has already received the mehr amount, maintenance of iddat period and istridhan from the respondent.
The Honorable Delhi High Court in judgment titled as Smt. Riaz Fatima And Anr. vs Mohd. Sharif on 20 November, 2006, observed in para 6 that mere statement of the husband taken in the written statement that he had divorced his wife on a particular day would not suffice. If this is accepted, it would be prone to misuse. Law on divorce by Muslim husband to his wife is well settled. There are certain prerequisites, which are to be fulfillled, before a Muslim husband is able to divorce his wife. Divorce cannot be said to have taken place unless following prerequisites are proved :
1. Divorce must be for a reasonable cause that is mandatory of Holy CASE NO. 270/03 P........... 12/18 : 13 : Quran. Therefore, when a dispute arises, the husband has to give evidence showing what was the cause which compelled him to divorce his wife.
2. He has to prove that there was proclamation of Talaq thrice in presence of witnesses or in a letter (as pleaded in the instant case). Till it is proved, Talaq is not valid. (Referred to M. Shahul Hameed v. A. Salima AIR 2003 Madras 162).
3. There has to be proof of payment of Meher (dower) amount or observance of period of iddat.
4. The husband has also to prove that there was attempt for settlement/conciliation prior to the divorce.
The aforesaid judgment lays down the four ingredients in the absence of which there cannot be a valid divorce.
Now taking up the prerequisites of the valid divorce one by one. Firstly, the condition of divorce for being a reasonable cause has not been fulfilled by the respondent in the present case.
The respondent has stated that on 22082001, the petitioner alongwith her brother and father came to the house of the respondent and pressed the CASE NO. 270/03 P........... 13/18 : 14 : respondent to pronounce talaq three times and the respondent in the presence of witnesses Mohd. Akil, Mohd. Imtaq, Mohd. Shahid and Mohd. Izhar divorced the petitioner by pronouncing the talaq three times. The respondent has examined Mohd. Akil as RW2 and Mohd. Imtaq as RW3 and both of them have nowhere deposed that the petitioner and her brother and father pressed the respondent to pronounce triple talaq. In view of above, the respondent has failed to establish the reasonable cause for pronouncement of triple talaq.
Second prerequisite, that there was proclamation of Talaq thrice in presence of witnesses or in a letter, has been proved as Mohd. Akil / RW2 and Mohd. Iqbal @ Mohd. Imtaq / RW3 have categorically deposed that the triple talaq was pronounced by the respondent in their presence.
Third ingredient, i.e. proof of payment of Meher (dower) amount or observance of period of iddat, has not been fulfilled as though the respondent has claimed that he had paid the mehr amount and maintenance amount for the iddat period in the presence of Mohd. Akil and Mohd. Imtaq. Sh. Mohd. Akil / RW2 denied in his cross examination, payment of mehr amount in his CASE NO. 270/03 P........... 14/18 : 15 : presence.
Fourth ingredient, that there was attempt for settlement/conciliation prior to the divorce has not been proved. In Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375, the Division Bench held that the correct law of talaq, as ordained by Holy Quran, is: (i) that 'talaq must be a for a 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. If their attempts fail, 'talaq' may be effected.
The respondent has not claimed any effort for reconciliation between the parties having being made by two arbiters, one chosen by the petitioner and another by the respondent In view of the foregoing reasons the respondent has failed to prove valid divorce being effected between the parties. As divorce could not be proved the petitioner continues to be the legally wedded wife of the respondent. Even otherwise, if it is presumed that the petitioner has been divorced by the respondent then also the petitioner is entitled to claim CASE NO. 270/03 P........... 15/18 : 16 : maintenance from the respondent under the present provision. Reliance in this regard is placed on the judgement titled as Shabana Bano Vs. Imran Khan 2010 (1) JCC 146.
(b) &(c) As regards the grounds for living separately, the petitioner / PW1 has deposed that on 09012001, the petitioner was beaten by the respondent in furtherance of demand of dowry in which the front upper tooth of the petitioner was broken. The petitioner has also deposed that on 22082001, she was beaten by the respondent mercilessly and she had to be admitted in the hospital at Loni, District Ghaziabad. The respondent in his entire reply has nowhere shown his willingness to reside with the petitioner rather he has stated that he cannot reside with the petitioner as he has legally divorced her. The respondent has not claimed to have made any provision for the maintenance of the petitioner during the period of separation. In view of the above, the petitioner has sufficient grounds for residing separately from the respondent and the factum of neglect on the part of respondent is also duly proved.
CASE NO. 270/03 P........... 16/18
: 17 :
(d) Now coming to the incapability of the petitioner to survive on her own.
The respondent has claimed that the petitioner is earning more than Rs. 3,000/ p.m. from embroidery work, however, the respondent has not led cogent evidence in support of said averment. On the other hand, the respondent has not come up with any material substantive to show that he is incapable to command income. The petitioner being incapable to sustain herself on her own is entitled to claim maintenance for the respondent.
Now coming to the quantum of maintenance. The petitioner has deposed that the respondent is engaged in the sale and purchase of tyres and is earning Rs.15,000/ p.m. The respondent in his cross examination denied the suggestion that he is doing the work of sale and purchase of old tyres and is earning Rs.15,000/ p.m. The petitioner has not even specified the name and address of the place where the respondent is carrying on the alleged business of sale and purchase of tyres. The respondent in his reply has claimed himself to be a casual labour earning Rs.1,500/ p.m. In his cross examination, the respondent has stated that he is working with one Sh. Aslam at Loni and is drawing an income of Rs.2,500/ p.m., however, the respondent CASE NO. 270/03 P........... 17/18 : 18 : failed to produce his employer Sh. Aslam before the court so as to prove his employment and meager income of Rs.2,500/ p.m. as claimed. In view of the above, the respondent has failed to discharge the onus to prove his employment and income. In the absence of any material on record regarding the true employment and income of the respondent, the respondent being an able bodied man, assessing his income as per Minimum Wages Act. Having regard to the income of the respondent and responsibilities and liabilities, the petition is accordingly decreed with direction to respondent to make an arrangement @ Rs.2,000/ per month in favour of petitioner from the date of filing of the present petition. Payment shall be made by 7th of every month by money order or be deposited in the bank account of the petitioner. Arrears shall be cleared within 3 months. The amounts if received by the petitioners subsequent to any orders shall be adjusted.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER) ON 12112010 MM/MAHILA COURTS CASE NO. 270/03 P........... 18/18