Calcutta High Court (Appellete Side)
Sheik Md. Hanif vs Unknown on 31 January, 2012
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 11 31.01.2012
.
s. d. C.R.R 1532 of 2010
with
C.R.A.N 146 of 2012
In the matter of : Sheik Md. Hanif .......petitioner.
Mr. Uday Shankar Chattopadhaya ...for the petitioner.
Mr. Probal Kumar Mukherjee
Mr. Sukanta Chakraborty ....for the O. P.
Re : CRAN 146 of 2012(Extn. Of Int. Order)
Heard Mr. Chattopadhaya, learned advocate appearing on behalf of the petitioner as well as Mr. Mukherjee, learned advocate for the opposite party.
The challenge in this revisional application is to the judgement and order dated 29th March, 2010 passed by the Ld. Judicial Magistrate, 2nd Court, Asansol in Misc. Case No. 83/2004( TR No. 59/2004) under section 125 Cr. P. C whereby granting maintenance to the opposite party Nikhat Parveen to the tune of Rs. 3000/- per month. Her husband Sheik Md. Hanif has come up with this application challenging the legality, validity and propriety of the order mainly on the ground that the learned court erred in not taking note of the fact that the opposite party/wife had no sufficient reason 2 to live apart from her husband and that being one of the principal ingredients for a wife in getting maintenance under section 125 Cr. P. C, the ld. court should not have granted maintenance in favour of the wife.
The marriage of Nikhat Parvee, opposite party herein and Sk. Md. Hanif, the petitioner was solemnized according to the Muslim rites and customs on 04-06-03 at Hazi Nabi Nagar, P. O. Barakar, P. S. Kulti, Dist - Burdwan. It was a negotiated marriage. Den Mohar was fixed at Rs.5001 and cash amount and other articles were given as dowry in that marriage. After the marriage, the couple started living at village Utra, the matrimonial home of Nikhat Parveen. She was subjected to physical and mental torture on many occasions for demand of more dowry and ultimately she was driven out on 13-08-2003. Since Nikhat Parveen had no income of her own and the petitioner Sk. Md. Hanif neglected and refused to maintain her, she had to file an application under Section 125 Cr. P. C in the court of the Ld. Magistrate, who upon consideration of the evidence recorded by it and upon consideration of the documents placed before it, came to a conclusion that although the opposite party Nikhat Parveen was divorced legally by the petitioner husband, she is entitled to maintenance until she remarried in view of the celebrated 3 decision of the Hon'ble Apex Court in Danial Latifi and Iqbal Bano's case.
The ld. trial court also found that the opposite party/wife Nikhat Parveen was subjected to physical and mental torture in her matrimonial house and she was driven out from her matrimonial house. The ld. court, upon taking consideration of the income and ability of the petitioner, ultimately awarded maintenance in favour of the Nikhat Parveen, the wife at the tune of Rs.3000/- per month.
Mr. Chattopadhaya, learned advocate appearing on behalf of the petitioner submits that the ld. trial court ought to have come to a findings that there is no sufficient reason for the wife to live apart from her matrimonial house.
He further submits that the opposite party/wife in her cross-examination has been stated categorically that she was brought up in a big town and was not willing to live in a village where her matrimonial house was situated.
4
He also submits that this was the reason why the wife left her matrimonial house and as such she had no sufficient reason to live in paternal house instead of matrimonial house.
Mr. Chattopadhaya, learned advocate for the petitioner further submits that the ld. court ought to have consider the financial ability properly. The view taken by the ld. Magistrate is to some extent hypothetical in nature.
Mr. Probal Mukherjee, learned advocate for the opposite party contends that the opposite party/wife was driven out from her matrimonial house and that she had no other reason to live in her paternal house. She was divorced by her husband and being a divorcee, she had every right to live in her paternal house.
This apart, he submits that the Ld. Magistrate had taken everything into consideration the questions raised easily and answered those point so raised by the husband, elaborately and properly. As far as means of the petitioner is concerned, he submits that being an owner of a truck and landed properties, a sum of Rs.3000/- appears to be meagre amount for a grown-up married lady.
5
Admittedly, there was marriage between the parties according to the Muslim rites and customs on 04-06-2003. Admittedly, the wife started living in her matrimonial house at village Utra. It is the case of the opposite parties that she was subjected to torture both mentally and physically and was finally driven out from matrimonial house on 13-08-2003. Since then, she has been living in her paternal house.
It is also an admitted position that there was legal 'talak' given by the petitioner and the opposite party/wife is a divorced Muslim woman. It appears from the judgement that the ld. court considered the point also as to whether a divorced Muslim woman is entitled to maintenance under section 125 Cr. P. C or not. The Ld. Magistrate answered it in the affirmative on the basis of the decisions of the Hon'ble Court in Daniel Latifi and Iqbal Bano's cases.
Although, this is a revisional application and this Court is not supposed to re-appreciate the evidence, it is pertinent to mention here that evidence of a witnesses is to be read as a whole, not in isolated manner in order to negate the entire case. P. W. 1 is Nikhat Parveen, the wife. She stated categorically and specifically in her examination-in-chief that after her marriage, she was started living in her matrimonial house with her husband at village Utra and that 6 she was subjected to physical and mental torture there on demand of dowry. Her parents were able to handle the situation temporarily by providing some money but that did not satisfy the lust of the husband/petitioner.
Ultimately, she was driven from her matrimonial home. In her cross-examination, she stated that she was brought up at Barakar, a town and she never resided in village.
At the same time, she denied that factor had actually any impact in her matrimonial life. Her statement was supported by all other witnesses examined on her behalf.
In the judgement impugned, the Ld. Magistrate had taken up this point separately and found that the wife/opposite party had sufficient reason to live apart because she was subjected to torture, physically and mentally, and ousted from her matrimonial home. It should not be forgotten that it was a negotiated dowry oriented marriage and there is no denial on the part of the petitioner/husband that the wife ever expressed her dissatisfaction in the matter of staying in the village instead of town. 7
In fact, in the written objection filed by the husband in the court of the Ld. Magistrate does not say anything over that issue. Therefore, I do not find any substance in the proposition of Mr. Chattopadhaya.
As far as the quantum of maintenance is concerned, it appears that the Ld. Magistrate has fixed Rs.3000/- per month towards maintenance of the opposite party/wife. The petitioner also denied but failed to establish that he is having no agricultural land and owner of a truck. It is within his personal knowledge and of course the wife has no scope to show or produce any document in the court regarding the landed properties and ownership of vehicle of her husband.
I find that the ld. court has correctly came to a conclusion that the petitioner husband having an income of Rs.40,000/- per month besides income from agricultural land, failed to disclose his income neither in his written objection nor in course of his examination in court.
It is not disputed that the petitioner is an able bodied man. The word "means" does not quantify only physical income, if one is healthy and able-bodied. He must be held to have means to 8 support his wife. The Onus is on the husband to show want of means.
In the instant case, I find that the ld. Magistrate has taken that factor also into consideration and his view is supported by some decisions.
I find nothing wrong in fixing Rs.3000/- as maintenance of the opposite party/wife by the ld. court. The order impugned is not suffering from any illegality, infirmity and impropriety. Neither it can be said to be perverse one, nor based on evidence recorded. This order is not required to be upset. Accordingly, I dismiss the revisional application.
In view of the dismissal of the main revisional application, the connected application being CRAN 146 of 2012 is also dismissed accordingly.
Criminal Section is directed to supply urgent photostat certified copy of this order to the learned advocate for the petitioner on usual undertaking.
( Kanchan Chakraborty, J. ) 9 11 31.01.2012.
s. d. C.R.R 1532 of 2010
with
C.R.A.N 146 of 2012
In the matter of : Sheik Md. Hanif .......petitioner.
Mr. Uday Shankar Chattopadhaya ...for the petitioner.
Mr. Probal Kumar Mukherjee
Mr. Sukanta Chakraborty ....for the O. P.
Re : CRAN 146 of 2012(Extn. Of Int. Order)
Heard Mr. Chattopadhaya, learned advocate appearing on behalf of the petitioner as well as Mr. Mukherjee, learned advocate for the opposite party.
The challenge in this revisional application is to the judgement and order dated 29th March, 2010 passed by the Ld. Judicial Magistrate, 2nd Court, Asansol in Misc. Case No. 83/2004( TR No. 59/2004) under section 125 Cr. P. C whereby granting maintenance to the opposite party Nikhat Parveen to the tune of Rs. 3000/- per month. Her husband Sheik Md. Hanif has come up with this application challenging the legality, validity and propriety of the order mainly on the ground that the learned court erred in not taking note of the fact that the opposite party/wife had no sufficient reason 10 to live apart from her husband and that being one of the principal ingredients for a wife in getting maintenance under section 125 Cr. P. C, the ld. court should not have granted maintenance in favour of the wife.
The marriage of Nikhat Parvee, opposite party herein and Sk. Md. Hanif, the petitioner was solemnized according to the Muslim rites and customs on 04-06-03 at Hazi Nabi Nagar, P. O. Barakar, P. S. Kulti, Dist - Burdwan. It was a negotiated marriage. Den Mohar was fixed at Rs.5001 and cash amount and other articles were given as dowry in that marriage. After the marriage, the couple started living at village Utra, the matrimonial home of Nikhat Parveen. She was subjected to physical and mental torture on many occasions for demand of more dowry and ultimately she was driven out on 13-08-2003. Since Nikhat Parveen had no income of her own and the petitioner Sk. Md. Hanif neglected and refused to maintain her, she had to file an application under Section 125 Cr. P. C in the court of the Ld. Magistrate, who upon consideration of the evidence recorded by it and upon consideration of the documents placed before it, came to a conclusion that although the opposite party Nikhat Parveen was divorced legally by the petitioner husband, she is entitled to maintenance until she remarried in view of the celebrated 11 decision of the Hon'ble Apex Court in Danial Latifi and Iqbal Bano's case.
The ld. trial court also found that the opposite party/wife Nikhat Parveen was subjected to physical and mental torture in her matrimonial house and she was driven out from her matrimonial house. The ld. court, upon taking consideration of the income and ability of the petitioner, ultimately awarded maintenance in favour of the Nikhat Parveen, the wife at the tune of Rs.3000/- per month.
Mr. Chattopadhaya, learned advocate appearing on behalf of the petitioner submits that the ld. trial court ought to have come to a findings that there is no sufficient reason for the wife to live apart from her matrimonial house.
He further submits that the opposite party/wife in her cross-examination has been stated categorically that she was brought up in a big town and was not willing to live in a village where her matrimonial house was situated.
12
He also submits that this was the reason why the wife left her matrimonial house and as such she had no sufficient reason to live in paternal house instead of matrimonial house.
Mr. Chattopadhaya, learned advocate for the petitioner further submits that the ld. court ought to have consider the financial ability properly. The view taken by the ld. Magistrate is to some extent hypothetical in nature.
Mr. Probal Mukherjee, learned advocate for the opposite party contends that the opposite party/wife was driven out from her matrimonial house and that she had no other reason to live in her paternal house. She was divorced by her husband and being a divorcee, she had every right to live in her paternal house.
This apart, he submits that the Ld. Magistrate had taken everything into consideration the questions raised easily and answered those point so raised by the husband, elaborately and properly. As far as means of the petitioner is concerned, he submits that being an owner of a truck and landed properties, a sum of Rs.3000/- appears to be meagre amount for a grown-up married lady.
13
Admittedly, there was marriage between the parties according to the Muslim rites and customs on 04-06-2003. Admittedly, the wife started living in her matrimonial house at village Utra. It is the case of the opposite parties that she was subjected to torture both mentally and physically and was finally driven out from matrimonial house on 13-08-2003. Since then, she has been living in her paternal house.
It is also an admitted position that there was legal 'talak' given by the petitioner and the opposite party/wife is a divorced Muslim woman. It appears from the judgement that the ld. court considered the point also as to whether a divorced Muslim woman is entitled to maintenance under section 125 Cr. P. C or not. The Ld. Magistrate answered it in the affirmative on the basis of the decisions of the Hon'ble Court in Daniel Latifi and Iqbal Bano's cases.
Although, this is a revisional application and this Court is not supposed to re-appreciate the evidence, it is pertinent to mention here that evidence of a witnesses is to be read as a whole, not in isolated manner in order to negate the entire case. P. W. 1 is Nikhat Parveen, the wife. She stated categorically and specifically in her examination-in-chief that after her marriage, she was started living in her matrimonial house with her husband at village Utra and that 14 she was subjected to physical and mental torture there on demand of dowry. Her parents were able to handle the situation temporarily by providing some money but that did not satisfy the lust of the husband/petitioner.
Ultimately, she was driven from her matrimonial home. In her cross-examination, she stated that she was brought up at Barakar, a town and she never resided in village.
At the same time, she denied that factor had actually any impact in her matrimonial life. Her statement was supported by all other witnesses examined on her behalf.
In the judgement impugned, the Ld. Magistrate had taken up this point separately and found that the wife/opposite party had sufficient reason to live apart because she was subjected to torture, physically and mentally, and ousted from her matrimonial home. It should not be forgotten that it was a negotiated dowry oriented marriage and there is no denial on the part of the petitioner/husband that the wife ever expressed her dissatisfaction in the matter of staying in the village instead of town. 15
In fact, in the written objection filed by the husband in the court of the Ld. Magistrate does not say anything over that issue. Therefore, I do not find any substance in the proposition of Mr. Chattopadhaya.
As far as the quantum of maintenance is concerned, it appears that the Ld. Magistrate has fixed Rs.3000/- per month towards maintenance of the opposite party/wife. The petitioner also denied but failed to establish that he is having no agricultural land and owner of a truck. It is within his personal knowledge and of course the wife has no scope to show or produce any document in the court regarding the landed properties and ownership of vehicle of her husband.
I find that the ld. court has correctly came to a conclusion that the petitioner husband having an income of Rs.40,000/- per month besides income from agricultural land, failed to disclose his income neither in his written objection nor in course of his examination in court.
It is not disputed that the petitioner is an able bodied man. The word "means" does not quantify only physical income, if one is healthy and able-bodied. He must be held to have means to 16 support his wife. The Onus is on the husband to show want of means.
In the instant case, I find that the ld. Magistrate has taken that factor also into consideration and his view is supported by some decisions.
I find nothing wrong in fixing Rs.3000/- as maintenance of the opposite party/wife by the ld. court. The order impugned is not suffering from any illegality, infirmity and impropriety. Neither it can be said to be perverse one, nor based on evidence recorded. This order is not required to be upset. Accordingly, I dismiss the revisional application.
In view of the dismissal of the main revisional application, the connected application being CRAN 146 of 2012 is also dismissed accordingly.
Criminal Section is directed to supply urgent photostat certified copy of this order to the learned advocate for the petitioner on usual undertaking.
( Kanchan Chakraborty, J. ) 17