Calcutta High Court (Appellete Side)
Item No. 5 vs (Allowed) on 12 July, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
CRR 3091 of 2004
12.07.2013
Court No.29 Sakina Bibi
Item No. 5
Vs.
(allowed)
Asraf Sk. & Anr.
None
.... For the Petitioner
Seen the office report. Notice appears to have been served to the petitioner. Neither the petitioner nor the opposite parties are coming days together. Therefore, the revisions is disposed on merit as follows:-
This revision arose out of judgment and order dated 17th June, 2002 passed by the learned Additional Sessions Judge, 6th Court, Alipore, South 24-Parganas in Criminal Motion No. 94 of 2002 by setting aside and modifying the final order dated 26.09.2001 passed by learned SDJM, Diamond Harbour, South 24-Paraganas in Case No. M-622 of 2000 (T.R. No. 58/2001) in the application under Section 125 of the Code of Criminal Procedure.
In the background of this case the fact in a nutshell is as follows:-
The petitioner filed an application under Section 125 of the Code of Criminal Procedure in the Court of learned SDJM against O.P. No. 1 2 praying for maintenance allowance of Rs.2,000/- per month for herself and sn the said application was registered as Case No. M-622/2000 (T.R. No. 50 of 2001) on 01.09.2000 stating inter-alia that her marriage was solemnized with the O.P. No.1 on 02.12.1998 in accordance with Mohamedan Law. At the time of marriage, cash of Rs.5,000/-, golden ornaments were given. But later on the member of her in-laws family insisted to bring more cash. The petitioner could not pay. So, the opposite party no. 1 and his near relatives set her body in fire after pouring kerosene oil. The petitioner raised alarm and the adjacent neighbours brought her to Hospital and she remained in the hospital for 70 days. Subsequently, Diamond Harbour P.S. Case No. 124/1999 under Section 498A/326/307 of the Indian Penal Code was started. After being recovered petitioner went to her father's house. Thereafter, the O.P. No.1 did not take care of the petitioner and did not pay any maintenance to her. The O.P. No.1 has 10/12 rickshaw-vans and some landed properties and earns about Rs.6,000-7,000/- per month. So, the petitioner prayed for maintenance of Rs.2,000/- per month. The O.P. No. 1 contested the case. On 26.09.2001, the learned SDJM, on hearing of both sides directed the opposite party no. 1 to pay maintenance to the petitioner from the date of the order at the rate of Rs.1,000/- per month. Against the said judgment and order passed by the learned SDJM, the O.P. No. 1 3 preferred Criminal Motion No. 94 of 2002 in the Court of Learned Additional Sessions Judge, 6th Court, Alipore, South 24-Parganas. The said motion was duly contested. The learned Judge set aside the judgment and order dated 26.09.2001 vide his order dated 17.06.2002 and modified the same with the direction that the petitioner/Sakina Bibi is entitled to get maintenance at the rate of Rs.1,000/- per month on and from 01.09.2000 to 27.03.2001. The learned Judge made erroneous observations about the entitlement of the maintenance which is out and out illegal and in violation of the specific direction of the Supreme Court. The petitioner states that the learned Additional Sessions Judge passed the impugned judgment and order without appreciating the present state of affairs. The petitioner's breasts were burnt for which she is unable to feed her baby and in such precarious conditions, the petitioner has been passing her days with her father under compelling circumstances, as the father of the petitioner is also very old and poor person and presently facing starvation. The learned Court below had erred in law in not granting maintenance after the date of communication of alleged 'Talak' through the written show because the plea of 'Talak' only in the written objection cannot at all be treated of 'Talak' by husband. 'Talak' must be for a reasonable cause.4
Being highly aggrieved by and dissatisfied with the judgment and order dated 17.06.2002 passed by the learned Additional Sessions Judge, 6th Court, Alipore in Criminal Motion No. 94 of 2002 for not granting the maintenance after the alleged date of 'Talak' and also for making such erroneous observations, the petitioner preferred this revision. Hence the case.
In absence of either of the parties, I am to look to available materials i.e. the judgment of the court below to judge the legality. The judgment of the SDJM shows that the O.P. No.1 herein raised the plea of giving 'Talak' which has not been clearly delivered. So, he granted maintenance under the provisions of Section 125 of the Code of Criminal Procedure. But the judgment of the learned Additional Sessions Judge shows that the husband Asraf Sk. pronounced three 'Talak' and the same was communicated to Sakina Bibi who was aware of the pronouncement of the 'Talak'. I find that Sakina Bibi was granted maintenance from 01.09.2001 to 27.03.2001 from Asraf Sk. who appeared before the Court on 27.03.2001 and he disclosed in his written statement that he pronounced three 'Talak' to Sakina. No document has been filed to show that he pronounced 'Talak' to his wife. But, the learned Additional Sessions Judge, accepted the plea of 'Talak' and set aside the order of 5 the learned SDJM.
It appears that the learned Sessions Judge committed a grave mistake in upsetting the judgment of the learned SDJM mainly because of the following facts:-
i) To pronounce 'Talak' by a Muslim to his wife should be duly communicated after proper form of pronouncement in presence of witnesses or in presence of the wife.
ii) No supporting witness was brought to show that in their
presence 'Talak' was pronounced and it was duly
communicated to the wife.
iii) The wife denied that she was given 'Talak'.
So, on this score the factum of 'Talak' was rightly disbelieved by the learned SDJM. Next, comes another legal aspect. If at all, in any case, 'Talak' is pronounced, still then the divorcee being a 'Muslim' lady is entitled to get maintenance from her husband. Reliance may be put on (2010) 2 C.Cr. L.R. (Cal) 232 wherein it was propounded that the husband is duty bound to pay future maintenance to his divorced wife beyond iddat period till her death or remarriage whichever is earlier.
Therefore, the impugned judgment and order date 17.06.2002 is hereby is set aside. In the result, the revision is allowed. 6
The judgment and the order dated 26.09.2001 passed by the learned SDJM, Diamond Harbour, allowing the application under Section 125 of the Code of Criminal Procedure and directing the O.P. No. 1/husband to pay maintenance at the rate of Rs.1,000/- per month from the date of the order is restored.
Let a copy of this judgment and Lower Court Record be sent down to the learned Court below immediately.
Urgent Xerox Certified copy of this order, if applied for, be given to the parties, upon compliance of necessary formalities.
( Toufique Uddin, J. )