Madhya Pradesh High Court
Mudasshar vs Smt.Bilkis on 27 March, 2017
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE SHRI RAJEEV KUMAR DUBEY J.
Cr.R.No.109/2017
Mudasshar Khan
Vs.
Smt. Bilkis Khan
Shri Vismit Panot, learned Counsel for the applicant.
Shri Anupam Chauhan, learned Counsel for the non-
applicant.
ORDER
(Passed on this day of March, 2017) This revision has been filed under Section 19(4) of Family Courts Act against the order dt.15.12.2016 passed by Principal Judge Family Court West Nimar Mandleshwar, in Criminal MJC No.28/2015 whereby he allowed the non-applicant's application filed under Section 125 of Cr.P.C. and directed the applicant to pay Rs. 4,000/- per month as maintenance to non-applicant.
The facts which are requisite to be stated for adjudication of this revision are that the non-applicant filed an application before Principal Judge Family Court Mandleshwar, under section 125 of The Criminal Procedure Code 1973 for getting maintenance from the applicant averting that her marriage was solemnized with applicant in February, 2014 under Muslim customs. At that time her father had spent enough according to his caliber. However, just after 15 to 20 days of marriage applicant started pressurizing her for bringing dowry of Rs. 1 lac and a motorcycle. The applicant's parents and sister used to abuse and harass her. After four months of marriage when she had fallen ill the applicant instead of taking care of her sent her back to her parental house after which respondent's parents warned the applicant to take legal action against him, upon which the applicant brought respondent back to her matrimonial house on the pretext of compromise. At that time applicant also executed a compromise agreement. Even then the applicant and his family members used to demand dowry from her and on 28.9.2014 the applicant expelled her from her matrimonial house and told that she would be allowed to come back to her matrimonial house only if she brings dowry as demanded by him. On 29.9.2014 when non- applicant was at her grandfather's place at Barwaha, the applicant threw a piece of paper at her parental house which was read by her father and was found to be divorce deed. After eight days when non-applicant came to her parental house applicant and his father came there and forcibly took her signature on that stamp. Since 28.9.2014 the respondent has been residing with her parents and applicant never came to meet or take her back to her matrimonial house. She is unable to maintain herself while applicant is able to maintain her but refused to do so without any sufficient reason so applicant be directed to pay Rs. 4,000/- per month as maintenance.
Applicant in his reply denied all the allegations and pleaded that he never demanded motorcycle and money and never harassed non-applicant for dowry. The non-applicant disliked him and wanted to marry Mohd. Wasim Sheikh therefore, she used to pressurize the applicant for giving her divorce. Therefore, on 29.9.2014 the divorce deed was executed voluntarily in front of a witness by both applicant and non-applicant and non-applicant has been living separately ever since. Non-applicant works as labourer and earns Rs. 3,000 to 4,000/- per month and is able to maintain herself. While applicant only earns Rs. 4,000 to 5,000/- per month and unable to pay maintenance to non- applicant and prayed for rejection.
Learned Trial Court allowed the applicant's prayer observing that the applicant failed to prove that he got divorced with non- applicant. From the evidence it is also proved that the non-applicant has sufficient reason to live separately from the applicant and is unable to maintain herself while applicant is able to maintain her but not to doing so without any sufficient reason and directed the applicant to pay Rs.4,000/-per month as maintenance. Being aggrieved from the order, applicant filed this revision.
Learned Counsel of the applicant submitted that from the evidence it is clearly proved that, the non-applicant disliked applicant and wanted to marry Mohd. Wasim Sheikh therefore, used to pressurize the applicant for giving her divorce due to which applicant gave divorce to non-applicant. A divorce deed was also executed by applicant and non-applicant in front of witness. So non-applicant is not entitled to take maintenance from the applicant. Even otherwise, applicant works as a labourer and only earns Rs. 3,000 to 4,000/- per month and unable to maintain her. Learned Trial Court without appreciating all these facts wrongly allowed the non-applicant's application.
On the other hand, learned Counsel for the non-applicant submitted that from the evidence it is clearly proved that non- applicant is a legally wedded wife of applicant and is unable to maintain herself while applicant is able to maintain her but not doing so without any sufficient reason. So learned Trial Court did not commit any mistake in allowing the non-applicant's application.
This Court has gone through the record and arguments put forth by both the parties.
As far as divorce is concerned, applicant took the plea that he took divorce from non-applicant and therefore, is not bound to pay maintenance to her. So burden of proving that plea lies on applicant. Although applicant deposed that non-applicant disliked him and had an affair with another boy and wanted to marry him and was pressurizing applicant to divorce her due to which he divorced her and that the divorce deed (Ex.D/2) was executed in presence of family members of both the parties, but non-applicant clearly denied that fact and deposed that applicant and his father came to her parental house and forcibly took her signatures on some blank stamp papers.
The Full Bench of Bombay High Court in the case of Dadgu Chotu Pathan Vs Rahimbi Dadgu Pathan and others reported in 2002 Vol. 104(3) Bom.L.R. 50 while dealing with the issue as regards Talaq by a husband, has held that mere pronouncement of Talaq by the husband or merely declaring his intentions or his acts of having pronounced the Talaq is not sufficient and does not meet the requirements of law. In every such exercise of right to Talaq the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for Talaq. Conveying his intentions to divorce the wife are not adequate to meet the requirements of Talaq in the eyes of law. All the stages of conveying the reasons for divorce, appointment of arbiters, the arbiters resorting to conciliation proceedings so as to bring reconciliation between the parties and the failure of such proceedings or a situation where it was impossible for the marriage to continue, are required to be proved as condition precedent for the husband's right to give Talaq to his wife. It is, thus, not merely the factum of Talaq but the conditions preceding to this stage of giving Talaq are also required to be proved when the wife disputes the factum of Talaq or the effectiveness of Talaq or the legality of Talaq before a Court of law. Mere statement made in writing before the Court, in any form, or in oral depositions regarding the Talaq having been pronounced sometimes in the past is not sufficient to hold that the husband has divorced his wife and such a divorce is in keeping with the dictates of Islam.
In the present case also applicant for proving factum of divorce did not produce any witness of Divorce deed Ex.D/2 regarding that deed statement of applicant himself and Sakina Khan (DW-2) mother of applicant, Shakur Khan (DW-3) father of applicant and Vahid Khan (DW-4) also contradictory. Applicant not stated in his statement that from which place Ex.D/2 was executed. In Ex.D/2 also it is not mentioned that on which place that deed was executed, Sakina Khan (DW-2) mother of applicant deposed in para 5 of her cross- examination that non-applicant sent the divorce deed through his brother to her. Although Shakur Khan (DW-3) and Vahid Khan (DW-4) deposed that divorce deed was executed on Mandleshwar and that deed wrote by brother of non-applicant. But both of them have admitted that at that time they were not present. While applicant deposed that his family member were present at the time of proceeding. So if entire evidence of the applicant and his witness analyzed, the same does not stand to the scrutiny as is provided in the Full Bench judgment of Bombay High Court in the matter of Dadgu Chotu Pathan Vs Rahimbi Dadgu Pathan and others(supra). So in the considered opinion of this Court Learned Trial Court did not commit any mistake in holding that applicant failed to prove that he got divorce from the non-applicant.
Apex Court in the matter of Shamima Farooqui Vs Shahid Khan Reported in (2015) SCC 705 held that the family Court can grant maintenance in favour of a divorced Muslim woman under Section 125 of the Criminal Procedure Code. So even if it is assumed (although it is not proved) that applicant gave divorce to non- applicant in these circumstances also non- applicant entitled to get maintenance from applicant till remarriage. So learned Trial Court also did not commit any mistake in holding that even if it is assumed that applicant gave divorce to non-applicant in that circumstances also non-applicant entitled to get maintenance from applicant.
As regards non-applicant's reason for living separately from the applicant is concerned, non-applicant clearly deposed in her statement that behaviour of applicant and his family members was not good with her. He used to demand dowry and harass her and pressurised her to bring dowry of Rs.1,00,000/- and a motorcycle. On 20.03.2014, applicant beated her and sent her to her parental house after some time applicant brought her back in her matrimonial house at that time he also got signed to her a compromise deed. But behaviour of applicant did not changed. He used to beat her and demanded dowry. So some time later she again left her matrimonial house and was forced to live with her parents .Her statement also corroborated form the statement of Frida Bi (PW2). Although applicant denied the fact and deposed that that behaviour of non-applicant herself was not good with him , she used to quarrel with him and told that she did not want to live with him and wanted divorce from him because she had an affair with another boy and left his house. He took her back after compromise at that time non-applicant admitted that in future she would not quarrel with applicant but she again started quarreling with him and was pressurizing applicant to divorce her due to which he divorced the non-applicant in presence of family members of both the party.But his statement does not appear to be correct because if non-applicant did not want to live with applicant and wanted to marry another boy she would not have gone to her matrimonial house after compromise. Even applicant also admitted in his statement that non-applicant still not remarried with another person.
Although in the compromise agreement it is mentioned that she had been living with her parents for the past 4 months because of some dispute and would not quarrel with applicant in future but at the same time it was also mentioned therein that applicant would not beat non-applicant in future. So on the basis of compromise deed, it cannot be said that applicant's behaviour was good with non- applicant. In these circumstances, there is no reason to disbelieve the respondent's statement that applicant's behaviour was not good with her. So, she has sufficient reason to live separately from the applicant.
Non-applicant clearly deposed in her statement that she was unable to maintain herself. Although applicant deposed that non- applicant is a labourer and earns Rs. 3,000 to 4,000/- per month but could not produce any reliable evidence in this regard. Even otherwise, she is working as a labourer for her survival, as applicant deserted her which does not imply that she is able to maintain herself. So, on that basis also it cannot be said that the respondent is able to maintain herself .
Although, the applicant stated that earlier he use to run gumti near transport office while presently works as a labourer and earns only Rs. 100/- to Rs. 200/- per day but even if it is assumed that applicant did labour work then presently minimum wages of a contingency worker is Rs. 7000/- to Rs. 8000/- per month. Applicant is able bodied person, and also did not state that he is unable to work due to any disability. In these circumstances, applicant is bound to pay maintenance to respondent.
As regard to the maintenance amount is concerned, learned Trial Court awarded Rs. 4,000/- per month as maintenance to non- applicant without ascertaining the income of applicant while applicant's proven earning was only Rs.7000/- to 8000/- per month. So the amount of maintenance awarded by the Trial Court is on higher side.
Hence, the applicant's petition is partly allowed and applicant is directed to pay Rs. 3,000/- instead of Rs. 4,000/- per month as maintenance to respondent from the date of impugned order of the Trial Court.
The revision is, accordingly, disposed of.
(Rajeev Kumar Dubey)
M.Jilla. Judge