Delhi District Court
Smt. Jubeda Khatoon vs Sh. Sheikhawat Hussain on 25 June, 2011
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IN THE COURT OF MS. SHUCHI LALER,
MM (MAHILA COURTS), KKD DELHI
CASE NO. 555/03
Unique I.D. No. 02402R0007792003
IN THE MATTER OF
Smt. Jubeda Khatoon
w/o Sh. Sheikhawat Hussain
d/o Sh. Mohd. Subhan
r/o B20/75, Rajiv Nagar,
Khazoori Khas, Delhi ...... Petitioner
Versus
Sh. Sheikhawat Hussain
s/o Sh. Manzar Hussain
r/o Madarsa Talimil Islam,
Village Peepal Heda, P.O. Masoori,
Distt. Ghaziabad, UP. ..... Respondent
Date of institution : 21091996
Date of judgement : 25062011
PETITION U/S 125 CR.P.C. FOR THE MAINTENANCE ON
BEHALF OF THE PETITIONER
JUDGEMENT
1. At the outset, it is pertinent to mention that in the present case Ex parte Judgement was passed on 05091997, which was set aside by the Learned Sessions Judge. Vider order dated 14122000, the Learned CASE NO. 555/03 P.......... 1/8 : 2 : Sessions Judge had directed that the allegation of divorce are to be considered preliminary. Accordingly, the Learned Predecessor Judge vide order dated 0406200. preliminary had directed the issue of divorce against the respondent and had directed the parties to lead evidence in respect to the capacity of the respondent and quantum of maintenance.
2. In the petition U/s 125 Cr.P.C. for grant of maintenance moved by the petitioner, it is stated that the petitioner got married to the respondent on 17021985 as per Muslim Rites & Customs. It has been stated that respondent started raising the demand of dowry and started beating and torturing the petitioner and forced the petitioner to bring a scooter and cash of Rs.10,000/ and threatened that if she failed to fulfill the demand, she would be killed. It has been alleged that on 27081992, the respondent left the petitioner at her parental home and the respondent had never come to inquire about the welfare of the petitioner. It has been also alleged that the respondent and his family members also refused to return the dowry articles of the petitioner. The petitioner has averred that the respondent has married with one Ms. Shamila who is residing with the respondent in the matrimonial house of the petitioner. It has been alleged that the respondent CASE NO. 555/03 P.......... 2/8 : 3 : has refused to maintain th petitioner and the petitioner is at the mercy of her poor parents and the petitioner has no movable or immovable property in her name and is unable to earn livelihood for herself. It has been claimed that the respondent is a Contractor by profession and is running a Sanitary shop at Bhajanpura, Delhi and the respondent is also having agricultural income, hence, the total income of the respondent has been claimed to be Rs.10,000/ p.m. and as such maintenance @ Rs.1,000/ p.m. for the petitioner is prayed.
3. Reply has been filed by the respondent wherein the respondent has stated that the present petition is not maintainable as the respondent has divorced the petitioner by written and irrevocable divorce on 17031997 in the presence of two witnesses Akbar Ali and Gayoor Ali and the original divorce letter was dispatched by Registered post to petitioner on 18031997. The respondent has also alleged that a legal notice through Advocate Sh. Vinod Singh Tomer stating the reason for divorce and informing the petitioner regarding divorce was also sent by Registered post. The respondent has also alleged that on 23041997 another notice was sent by registered post through Sh. Vinod Singh Tomer, Advocate and after CASE NO. 555/03 P.......... 3/8 : 4 : pronouncement of divorce, the respondent sent Rs.150/ as maintenance of Iddat period by money order vide receipt dated 18031997. The respondent has stated that Rs.10,000/ was fixed as Mehar and no dowry was given or accepted in this marriage. The respondent has alleged that the petitioner compelled the respondent to reside in Delhi and respondent purchased 130 sq. yards plot and constructed one room thereon and the petitioner is living in the said room. The allegations of demand of dowry and cruelty have been traversed by the respondent.
4. The petitioner has preferred replication wherein the assertions to the contrary have been controverted and has reiterated the facts stated in the petition.
5. In support of her case, the petitioner has examined herself as PW1 and has tendered her evidence by way of affidavit, which is Ex.PW1/A wherein she has reaffirmed the facts stated in the petition. In rebuttal, the respondent has examined himself as RW1 and has tendered his evidence by way of affidavit, which is Ex.RW1/A wherein he has reaffirmed the facts stated in his reply to the present petition.
6. I have heard the part final arguments on behalf of the parties on CASE NO. 555/03 P.......... 4/8 : 5 : 19022011 and perused the record with their assistance, however, today, despite repeated calls since morning, none appeared on behalf of the parties to address further final arguments.
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, 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) As regards the relationship, the petitioner has stated that she got married with the respondent on 17021985. The respondent has claimed that he had divorced the petitioner on 17031997. The Learned Predecessor Judge vide order dated 04062008 observed that there has been a valid talaq as per Muslim Law. In view of the order dated 04062008, it stands proved that the petitioner continues to be the legally wedded wife of the respondent.
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(b) & (c) As regards the grounds for living separately, the respondent /
RW1 has admitted that he has solemnized second marriage. RW1 has also deposed in his cross examination that he is not ready to take back the petitioner. RW1 has further admitted in his cross examination that he has not sent any expenses to the petitioner before the alleged divorce or thereafter. Hence, it is established on record that the petitioner has sufficient reasons to reside separate from the respondent and the respondent has neglected to maintain the petitioner.
(d) As regards the incapability of petitioner to survive on her own, the petitioner / PW1 has deposed that she has no movable or immovable property in her name and she is unable to maintain herself. The respondent / RW1, through, in his examination in chief deposed that the petitioner is engaged in hosiery work, the respondent could not stand the rigors of cross examination and in his cross examination the respondent admitted that the petitioner is a household lady. Further, in the entire cross examination, no suggestion or question has been put to the petitioner that she being engaged in alleged hosiery work, is able to sustain herself. In view of the above, the factum of the petitioner being incapable to survive on her own stands CASE NO. 555/03 P.......... 6/8 : 7 : proved.
Now coming to the question of quantum of maintenance. The petitioner has claimed that the respondent is a Contractor by profession and is having Sanitary Shop in Ghaziabad and is earning Rs.30,000/ p.m. and is also having income of Rs.20,000/ p.m. from agricultural land. The petitioner has not specified the village where the agricultural land of the respondent is situated. The petitioner has not led cogent evidence to prove that the respondent is running any Sanitary Shop or is working as a Contractor. On the other hand, though the respondent in his examination in chief stated that he has no agricultural land and has no source of income, in his cross examination the respondent admitted that he is working with a Contractor as a Labour. The respondent has neither disclosed the name of the said Contractor nor his income to this court.
In the absence of any material on record regarding the true income of the respondent, assessing the income of the respondent as per Minimum Wages Act and having regard to the status of the parties and their responsibilities and liabilities, the present petition is decreed with the direction to the respondent to make an arrangement @ Rs.500/ per month CASE NO. 555/03 P.......... 7/8 : 8 : in favour of petitioner from the date of filing of the present petition till 24092001 and thereafter, the respondent is directed to make an arrangement @ Rs.1,500/ per month in favour of petitioner till she remarries. Payment shall be made by 10th of every month by money order or be deposited in the bank account of the petitioners. Arrears shall be cleared within 3 months. In case of default in payment of maintenance amount, if any, the respondent shall be liable to pay the penalty in view of the judgement titled as Gaurav Sondhi Vs. Diya Sondhi 120 (2005) Delhi Law Times 426. The amounts if received by the petitioner subsequent to any orders shall be adjusted.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER) ON 25062011 MM/MAHILA COURTS CASE NO. 555/03 P.......... 8/8