Andhra Pradesh High Court - Amravati
Mohammed Saifullah, vs Mohammed Sathyavani Safeena, 2 Others, on 23 September, 2020
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
Criminal Petition No. 7917 of 2013
ORDER:
1) Heard Sri. A.K. Kishore Reddy, the learned Counsel for the Petitioner and Sri. E. Sambasiva Pratap, the learned Public Prosecutor. With their consent, the Criminal Petition is disposed of through BlueJeans video conferencing app.
2) Originally, the 1st Respondent/wife along with 2nd Respondent [her Son] filed M.C. No. 19 of 2009 before IV Additional Judicial Magistrate of First Class, Kakinada, East Godavari District, under Section 125 Cr.P.C., claiming maintenance @ Rs.5,000/- per month to the 1st Respondent and @ Rs.3,000/- per month to 2nd Respondent herein. By its Judgment, dated 19.09.2011, the learned Magistrate allowed the M.C., granting maintenance @ Rs.2,000/- per month to the 1st Respondent/wife and Rs.1,000/- per month to 2nd Respondent/son; apart from directing the Petitioner/husband to pay costs of Rs.1,000/-. Aggrieved by the same, the Petitioner/husband herein preferred Criminal Revision Petition No. 90 of 2011, before the III Additional District and Sessions Judge, Kakinada, East Godavari District. Vide Judgment, dated 24.06.2013, the learned Sessions Judge, dismissed the said revision. Assailing the Order, dated 24.06.2013, passed in Criminal R.C. No. 90 of 2011, this present application is filed, under Section 482 of Code of Criminal Procedure, 1973.
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3) (i) The facts, in issue, show that, the Petitioner herein is the husband of the 1st Respondent and the 2nd Respondent is the second child born to them. The parents of 1st Respondent/wife used to run a tea stall near the Petitioner/husband shop and, as such, the Petitioner/husband used to visit the tea stall of the parents of the 1st Respondent/wife regularly. Slowly, the Petitioner/husband trapped the 1st Respondent/wife on the pretext of love and finally both of them fell in love with each other. Thereafter, the Petitioner/husband said to have induced the 1st Respondent/wife to have sexual intercourse and promised to marry her by converting her into Islam religion.
(ii) In the year 1999, the Petitioner/husband took the 1st Respondent/wife to Madina Ali Darga at Gandhi Center of Samalkot, where, in the presence of his Muslim friends and other friends, got declared through them that the 1st Respondent/wife is converted to Islam and changed her name from Satyavani to Safeena. However, the marriage between the 1st Respondent/wife and the Petitioner/husband was kept in secret till he convinced his elders. Believing his version, the 1st Respondent/wife did not disclose the fact of marriage to others for some-time, but, when she became pregnant, the Petitioner/husband insisted her to undergo abortion. At that point of time, the 1st Respondent/wife disclosed the fact of marriage to the parents of Petitioner/husband, leading to a dispute before the elders. It is said that, thereafter, both of them lived together, during which time, the 1st Respondent/wife became 3 pregnant twice, but, unfortunately, the same resulted in abortion, in the year 2001 and 2003. When the doctors opined that, the possibility of the 1st Respondent/wife delivering children is difficult, the Petitioner/husband started developing illegal contacts with other women. As and when, the 1st Respondent/wife raised objection about the illegal contacts, the Petitioner/husband used to beat her inhumanly.
(iii) It is said that, when the 1st Respondent/wife became pregnant, the Petitioner/husband asked her to remain with her parents and, in the year 2004, she gave birth to a male child, by name, Abdul Khalam. However, in the year 2005, she gave birth to another child, but, the said baby died.
(iv) As things stood thus, the Petitioner/husband informed the 1st Respondent/wife that he made loss in business and requested her to go to foreign country and earn some money, which can be used for welfare of the family. Believing the version of the Petitioner/husband, the 1st Respondent/wife went to Bahrain and used to send money regularly to the Petitioner/husband. After receipt of the money, the Petitioner/husband again renewed his illegal contacts with other women and used to spend the money, sent by the 1st Respondent/wife, lavishly for his personal expenses and neglected the child. The said fact was informed to the 1st Respondent/wife, [who was in Bahrain], by the parents of the Petitioner/husband. The 1st Respondent/wife expressed her intention to return back to India, but, the same was objected to by 4 the Petitioner/husband stating that he changed his attitude and would take care of the child. The Petitioner/husband further assured that, when the 1st Respondent/wife returns back from Bahrain, he would setup a separate family at Samalkota, but, failed to keep up his promise.
(v) It is said that, the first child, by name, Abdul Khalam, died due to ill-health; and in the year 2007, the 1st Respondent/wife gave birth to another child, by name, Zaman, who is the 2nd Respondent herein. As things became worse and the relationship got strained and, since the Petitioner/husband has spent away the entire amount earned and sent by the 1st Respondent/wife to him, she filed M.C., claiming maintenance, as stated supra. It is pleaded that, the Petitioner/husband is doing business in meat and earning Rs.20,000/- per month.
4) (i) A counter came to be filed denying the allegation made in the petition, except the relationship between the Petitioner/husband and the 1st Respondent/wife. However, submits that the marriage was performed in the year 2002, but, not in the year 1999. It is said that, the 1st Respondent/wife with free will and consent got converted to Islam and changed her name as Safeena and the Nikha was performed before the elders. In the year 2004, the 1st Respondent/wife gave birth to a baby, who died at the time of delivery. Subsequently, the Petitioner/husband set up a separate family at Samalkota and resided happily.
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(ii) It is said that, the 1st Respondent/wife lived in Bahrain for two months only and, when she returned from Bahrain, she was found pregnant. In view of she developing illegal contacts in Bahrain and becoming pregnant, was sent back to India. Soon, thereafter, disputes arose between them and the matter was placed before the elders, for amicable settlement. The elders advised to take Khula, as the marriage was performed in accordance with Muslim rites. Consequently, the Petitioner/husband paid a sum of Rs.65,000/- by way of cheque bearing no. 983114, dated 05.02.2007, drawn on State Bank of India, Samalkot and gold ornaments worth of Rs.35,000/- to the 1st Respondent/wife. The Petitioner/husband also paid Rs.5,250/- towards Mahar to the 1st Respondent/wife. The Petitioner/husband also paid Rs.9,600/- towards full and final settlement including maintenance to the 2nd Respondent/son, which amounts were received by the 1st Respondent/wife in the presence of elders and a Khulanama was executed, on 05.02.2007, by both the parties. Accordingly, the marriage was dissolved. It is said that, since, the marriage was dissolved, there is no relationship between the Petitioner/husband and the 1st Respondent/wife; and as he is not aware about the birth of another child, in the month of March 2007, pleads that 1st Respondent/wife is not entitled for any maintenance. It is said that, the Petitioner/husband is working in a slaughter house and earning Rs.3,500/- per month. 6
5) In support of her case, the 1st Respondent/wife examined herself as PW1 and her father as PW2 and got marked Ex.P1 to Ex.P4; while the Petitioner/husband examined himself as RW1 and also got examined RW2 and RW3 on his behalf, apart from marking Ex. R1 and Ex.R2.
6) Considering the evidence available on record, both the courts concurrently held that, the 1st Respondent/wife is entitled for maintenance and, accordingly, granted maintenance, as stated supra.
7) Sri. A.K. Kishore Reddy, the learned Counsel for the Petitioner/husband would submit that, payment of maintenance to the Respondents herein would be contrary to law. In other words, his plea is that, having accepted the Mahar amount, maintenance towards full and final settlement and, also substantial amount towards maintenance of 2nd Respondent/Son, the 1st Respondent/wife ought not to have filed the application, seeking maintenance, under Section 125 Cr.P.C. The Counsel pleads that, once a divorce has been granted, vide Khulanama [Ex.R2], which was executed between the parties, the 1st Respondent/wife is not entitled to any maintenance, under Section 125 Cr.P.C. The Counsel further submits that, he has no objection for paying the maintenance to the 2nd Respondent/son.
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8) Refuting the same, Sri. E. Sambasiva Pratap, the learned counsel for the Respondent would submit that, when there is no valid divorce, the question of refusing to pay maintenance would not arise. The bar, as sought for by the Petitioner/husband, cannot be invoked, when there is no valid divorce. He took the court, through the evidence of the witnesses, more particularly, RW2 and RW3 to show that, there was no khula at the instance of 1st Respondent/wife, leave alone talaq. Hence, he pleads that, there is no proof that the amount given was towards Mahar. He further pleads that, the cheques, which are placed on record would show that, the payment of Mahar was given to Gollapalli Satya Vani & Gollapalli Appala Konda, and the amounts mentioned therein differ with the amounts alleged to have been paid by the Petitioner/husband. In-fact, these cheques were never part of the record, during trial, hence, the same cannot be relied upon.
9) It may not be necessary for this court to reiterate the entire evidence once again, as the only plea taken by Sri. A.K. Kishore Reddy, the learned Counsel for the Petitioner/husband that, having accepted the amounts, the 1st Respondent/wife could not have claimed any maintenance. The Counsel took the court, through paragraph 11 of the Order, of the trial court, in support of his plea, which is reproduced as under:-
"In this case there is no dispute with regard to the marriage between the 1st petitioner and the respondent. The defence of the respondent is that both the parties entered into Khula and the respondent paid a sum of Rs.65,000/- by way of a cheque, 8 gold jewellery worth Rs.35,000/- to the 1st petitioner towards full and final alimony and he also paid Rs.9,600/- towards maintenance to the minor and he also paid Rs.5,250/- towards Mahar amount in the presence of the elders."
10) From the narration of events, in the said paragraph of the Order, it appears that, the defence of the Petitioner/husband is that, both the parties have entered into a Khula and the Petitioner/husband paid a sum of Rs.65,000/- by way of a cheque, gold jewellery worth Rs.35,000/- to the 1st Respondent/wife towards full and final alimony and, also paid Rs.9,600/- towards maintenance to the minor and, also paid Rs.5,250/- towards Mahar amount in the presence of the elders. This is not a finding given by the court, but, it is the plea taken. No proof of payment of money was filed before the trial court. In this petition, the Petitioner/husband placed on record the cheques, said to have been given. Except the amount of Rs.65,000/-, which was paid by way of cheque, the other amounts do not tally with the figures mentioned in the cheques. One cheque for Rs.7,200/- and another cheque for Rs.2,400/- were drawn in favour of Gollapalli Appala Konda. No explanation is forthcoming as to why, the said amounts were given to Gollapalli Appala Konda, who happens to be the father of the 1st Respondent/wife.
11) Be that as it may, there is no proof that the Mahar of Rs.5,250/- was paid, or Rs.9,600/- towards maintenance of minor. Apart from that, a perusal of the evidence of RW2 and RW3 throws any amount doubt, as to whether, really there was any divorce. 9
12) RW2 in his cross-examination admits that, he does not know the specific reason for execution of Khulanama between the Petitioner/husband and the 1st Respondent/wife and he cannot say the date of khulanama. He further admits that, he does not know Urdu language, in which khulanama was written and that he did not sign on the khulanama [Ex.R2]. Therefore, his admissions makes very clear that, he was not a witness or signatory to the khulanama. RW3 in his evidence deposed that, he did not participate in the khulanama. Therefore, it is very much clear that, both these witnesses never participated in the alleged khulanama [Ex.R2] and no other person, who attested the khulanama was examined. Hence, it cannot be said that, the Petitioner/husband herein proved that, there was a valid divorce between the parties. When, once, there is no valid divorce between both the parties, the 1st Respondent/wife is justified in invoking Section 125 Cr.P.C., claiming maintenance. Hence, this court is of the view that, there is no illegality or impropriety in the Orders passed by both the courts, which warrants no interference under Section 482 Cr.P.C.
13) Coming to another contention raised by the learned Counsel for the Petitioner/husband that, the 1st Respondent/wife is living in adultery and the 2nd Respondent/son is not born to the Petitioner/husband. However, no evidence has been adduced to prove the act of 'adultery'. Mere statement on oath by the Petitioner/husband, without any evidence in support of the same, cannot be taken at its face value, to say that the 1st Respondent/wife 10 is living in adultery. At the same time, it is the argument of the learned Counsel for the Petitioner/husband that, he paid Rs.9,600/- to the 1st Respondent/wife towards full and final settlement including maintenance to 2nd Respondent/son. If really the 2nd Respondent/son is not born to the Petitioner/husband and 1st Respondent/wife, there is no need for him to pay the said amount, for maintenance. In-fact, in the cross-examination, RW1 admits that, 2nd Respondent/son was born to Petitioner/husband and that he does not suspect the character of the 1st Respondent/wife. Therefore, the second ground urged, namely, that the 1st Respondent/wife is living an adulterous life is only a figment of imagination of the Petitioner/husband and there is no proof in support of the same.
14) In Ravendra Singh v. Kapsi Bai1 the Madhya Pradesh High Court, held as under:
"Besides this the words used 'living in adultery' in sub- Section (4) of Sec. 125 Cr.P.C. are of limited amplitude, inasmuch as it is for the husband to prove that the wife is continuously committing violation of the marriage bed, indulging in adulterous life, i.e. living in quasi permanent union with Jang Bahadur Sharma with whom according to Ravendra Singh she was caught red banded. To establish this, more than one instance of adultery has to be brought home to the knowledge of the wife, thereby constituting the term 'living in adultery' within the meaning of sub-Section (4) Sec. 125 Criminal 'Procedure Code. Admittedly, nothing of that sort is brought home to the knowledge of the wife, in the instant case.1
II (1991) DMC 422 11
15) Viewed from any angle, this court is of the opinion that the findings of the trial courts warrants no interference and, that the argument of the learned counsel for the Petitioner/husband, on both counts, is liable to be rejected.
16) Accordingly, the Criminal Petition is dismissed. No order as to costs.
17) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date: 23.09.2020 SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR Criminal Petition No. 7917 of 2013 Date: .09.2020 SM.