Delhi District Court
Smt. Rubina vs Sh. Mohd. Shahid on 13 October, 2009
:1:
IN THE MATTER OF MS. SHUCHI SHAHMIRI
MM(MAHILA COURTS, KKD COURT:DELHI
CC No142/02
Date of Decision:13.10.2009
U/s 125 Cr.P.C
IN THE MATTER OF
Smt. Rubina
D/o Shaukat Ali,
W/o Mohd. Shahid
R/o A80, Gali No. 4,
Chand Bagh, Delhi94. ..............Petitioner
Versus
Sh. Mohd. Shahid
S/o Sh. Mohd. Hussain
R/o C256, Gali No. 7,
Nehru Vihar,
Delhi110094. ..............Respondent
PETITION U/S 125 CR.P.C. FOR THE MAINTENANCE
ON BEHALF OF THE PETITIONER
JUDGMENT:
1. By this Judgment, I shall decide the maintenance petition filed by petitioner stating that marriage of petitioner was solemnized with the respondent on 14122003 as per Muslim Rites and Customs and a lot of dowry articles were given by the parents of the Petitioner in the marriage. It has been alleged that soon after the marriage the Respondent started misbehaving, beating the Petitioner mercilessly on the instigation of mother inlaw, sistersinlaw in furtherance of demand of dowry. It has been averred that the Respondent has illicit relations with one Smt. Famina and the :2: respondent has love and affection for Smt. Famina and respondent used to tease the petitioner by saying that she is not as beautiful as Smt. Famina. The Petitioner has alleged that on 01.01.2005 the Respondent and his family members demanded Maruti Car, Rs. 1 Lakh in cash and when petitioner showed her inability to the same, the Petitioner was mercilessly beaten and was thrown out from the matrimonial home with the threat that if the said demand is not fulfilled, the petitioner shall not enter the matrimonial home and would be killed. It has been stated that the Petitioner is an illiterate lady and she has no source of income and is totally dependant upon her parents. It has been claimed that the Respondent is running a factory in the name and style of M.D. Hussain Hosiery and is earning a handsome amount of Rs. 25,000/ p.m. and Rs. 10,000/ p.m. from the Purchun Shop which is being run by the fatherinlaw of the Petitioner and the Respondent has no liability except to maintain the Petitioner and as such maintenance of Rs. 8000/ p.m. for the Petitioner is prayed.
2. Reply has been filed wherein the Respondent has stated that the Petitioner cannot claim maintenance as she has already been divorced by the Respondent and under the provisions of Muslim Women (Protection of Rights of Divorce Act) 1986, a divorced Muslim Women cannot claim maintenance from her former husband, hence the present petition be rejected. The Respondent has denied the allegations of cruelty and of :3: demand of dowry and of illicit relations with Smt. Famina. The respondent has averred that the petitioner ignored the respondent on the nod of her parents as the parents of the petitioner wanted to extort money from the respondent. The respondent has stated that the petitioner had gone to her parental house to join a marriage of her relative and when the respondent went to bring her back from her parental house, the respondent was misbehaved by his mother in law namely Cobra and the petitioner refused to go back to her matrimonial house and she made a false complaint with CAW Cell. The respondent tried his best to sort out the disputes between them but Cobra created hurdles and finding no way, on 11.07.2005 the respondent proclaimed talaq in the presence of witnesses and a notice was sent to the petitioner through his Counsel along with written Talaqnama. The notice was sent through Registered AD and the same was received by the petitioner. The respondent has denied that he is running a factory in the name and style of M.D. Hussain Hosiery and he has claimed that he is working as a Labour/Helper in a Brazer Factory for a sum of Rs. 75/ per day and his uncle owns the said factory and the Respondent has the liability to maintain his old parents, three unmarried sisters and two younger brothers.
3. Replication has been filed by the Petitioner wherein the assertions to the contrary have been controverted and has reiterated the facts stated in the :4: Petition.
4. The Petitioner has examined herself as PW1 and has tendered her evidence by way of affidavit, which is Ex. PW1/A. In her examination in chief, she has reiterated the facts stated in the Petition. In support of her oral testimony, the Petitioner has relied upon the copy of Nikahnama, which is MarkA, marriage card is MarkB and the translated copy is MarkC, copy of purchase of jewellery are Ex. PW1/C to Ex.PW1/I. Copy of FIR is mark D and visiting card is Ex. PW1/J. The Petitioner has also examined her father Sh. Shaukat Ali as PW2, who has tendered his evidence by way of affidavit which is Ex. PW2/A, and also Sh. Naseem Ahmad as PW3. In rebuttal, the Respondent has examined himself as DW1 and has tendered his evidence by way of affidavit, which is Ex.DW1/A and also examined his father Mohd. Hussain as DW 2, his brotherinlaw Sh. Mohd. Kashim as DW3 and his neighbourer Sh. Mohd. Kashim as DW4 and the tenant of the mother of the Respondent Sh. Mohd. Shahid Ansari as DW6.
5. I have heard the Ld. Counsel for parties and perused the record with his assistance.
6. 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, :5: b. the ground for her residing separately, which should be reasonable and sufficient to make her entitled for the relief, c. the factum 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 same has been disputed by the respondent. A Muslim divorced woman is not entitled to claim maintenance under section 125 of the Act. (Danial Latifi & Anr. Vs. Union of India, AIR 2001 SC 3958). The respondent/RW1 has deposed that on 11.07.2005, he had proclaimed triple Talak in the presence of four witnesses namely Mohd.
Hussain, Mohd. Kashim, S/o Sh. Abdul Hafiz, Mohd. Kashim, S/o Sh. Abdul Mazid and Azad to the petitioner at his residence and a Talaknama Ex. DW1/2 was executed in this regard. The respondent has also deposed that he had sent a legal notice Ex. DW1/3 to the petitioner along with original Talaknama through his Counsel by registered post and the petitioner received the Legal Notice along with the Talaknama and signed the A.D. Card Ex.DW1/5 which was received back by the Learned Counsel for Respondent. The respondent has further deposed that he had published a public notice in the newspaper 'Rastriya Sahara', Ex.DW1/7 regarding the pronouncement of Talak. The respondent has testified that on 30.06.2007, he had obtained a Fatwa from the Muslim Scholar Sh. Mohd. Mukarram :6: Ahmed regarding pronouncement of Talak and the aforesaid scholar confirmed the pronouncement of triple Talak. The photocopy of the Fatwa has been filed on record, which is MarkX. The respondent has also testified that he has obtained another Fatwa from another Muslim institution "Madarsa Aminia Islamia" and the said Fatwa is Ex. DW1/9. The respondent has deposed that on 21112006, he has performed second marriage with one Ms. Zeba. DW2 Mohd. Hussain, the father of the respondent also deposed on the same lines as DW1.
DW 3 Mohd. Kasim s/o Late Abdul Hafeez, brotherinlaw of the respondent deposed that the respondent proclaimed triple talaq to the petitioner in his presence on 1172005 and talaqnama exhibit DW1/2 bears his signature. Mohd. Kasim s/o Late Abdul Majeed, the neighbour of the respondent appeared as DW4 and deposed that he witnessed the triple talaq proclaimed by the respondent to the petitioner and the talaqnama Ex. DW 1/2 bears his signature. The petitioner, PW1, has denied receiving the notice of talaq.
The Honorable Delhi High Court in judgment titled Smt. Riaz Fatima And Anr. vs Mohd. Sharif on 20 November, 2006, observed in para 6 that mere statement of the husband taken in the written statement that he had divorced his wife on a particular day would not suffice. If this is accepted, it would be prone to misuse. Law on divorce by Muslim husband to his wife is :7: well settled. There are certain prerequisites, which are to be fulfillled, before a Muslim husband is able to divorce his wife. Divorce cannot be said to have taken place unless following prerequisites are proved :
1. Divorce must be for a reasonable cause that is mandatory of Holy Quran. Therefore, when a dispute arises, the husband has to give evidence showing what was the cause which compelled him to divorce his wife.
2. He has to prove that there was proclamation of Talaq thrice in presence of witnesses or in a letter (as pleaded in the instant case). Till it is proved, Talaq is not valid. (Referred to M. Shahul Hameed v. A. Salima AIR 2003 Madras 162
3. There has to be proof of payment of Meher (dower) amount or observance of period of iddat.
4. The husband has also to prove that there was attempt for settlement/conciliation prior to the divorce.
The aforesaid judgment lays down the four ingredients in the absence of which there cannot be a valid divorce.
Now taking up the prerequisites of the valid divorce one by one. Firstly, the condition of divorce for being a reasonable cause has not been fulfilled by the respondent in the present case. In his written statement the respondent has stated that the petitioner went back to her parental home and when the respondent had gone to bring her back the respondent was :8: misbehaved by his motherinlaw namely Cobra and the petitioner refused to go back to her matrimonial house and she made a false complaint with C.A.W. Cell. The respondent tried to sort out the disputes but Cobra created hurdles and eventually the respondent claimed triple talaq to the petitioner. In their examinationinchief the respondent/DW1, his father/DW2, his brotherinlaw/DW3, his neighbour/DW4 and his mother's tenant/DW6 have deposed that the respondent gave a lot of love and affection to the petitioner however from the very beginning the behaviour and attitude of the petitioner was very obstinate, harsh and cruel towards the respondent and his family. The petitioner under influence of her parents ignored and ill treated the respondent and never cared and paid regard to the respondent. All the said witnesses have testified that the petitioner went to her parental home to join a marriage and when the respondent went to bring her back, he was misbehaved by his motherinlaw namely Cobra and the petitioner refused to go back to her matrimonial home and made a false complaint with the C.A.W. Cell. They have further testified that the false allegations, false complaints and the refusal of the petitioner to join the company of the respondent made relations so strained that the respondent proclaimed triple talaq to the petitioner. Neither of the said witnesses in their cross examination could specify any date or month or year on which the petitioner harassed the respondent nor they preferred to lodge any complaint regarding :9: the misbehaviour of the petitioner and her mother. The said witnesses have also not specified any date on which an effort was made by the respondent to bring back the petitioner to the matrimonial home. The respondent admitted in his cross examination that he did not give any notice to the petitioner to join his company It is also pertinent to mention that the respondent did not prefer to file a suit for restitution of conjugal rights against the petitioner and at the first instance proclaimed talaq to the petitioner. Mere making of a complaint in C.A.W. Cell against the husband and his family members cannot be construed as a reasonable cause for the husband to proclaim talaq. Hence the respondent has miserably failed to prove the reasonable cause which compelled him to divorce his wife.
Second prerequisite, that there was proclamation of Talaq thrice in presence of witnesses or in a letter, has been proved as DW 3 Mohd. Kasim s/o Late Abdul Hafeez, brotherinlaw of the respondent and DW4 Mohd. Kasim s/o Late Abdul Majeed, the neighbour of the respondent deposed that they witnessed the triple talaq proclaimed by the respondent to the petitioner and the talaqnama Ex. DW1/2 bears their signature. However, it is of no relevance as the other three ingredients of a legally valid divorce have not been proved.
Third ingredient, i.e. proof of payment of Meher (dower) amount or observance of period of iddat, has not been fulfilled as the respondent has :10: neither in his reply nor in his evidence has claimed the payment of the meher amount.
Fourth ingredient, that there was attempt for settlement/conciliation prior to the divorce has not been proved. In Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375, the Division Bench held that the correct law of talaq, as ordained by Holy Quran, is: (i) that 'talaq must be a for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected.
The respondent and all the witnesses produced by him have deposed that on 3062007 a meeting was held at the house of Azad son of Shri. Shahzad Khan, where the father and the relatives of the petitioner had joined the meeting but no fruitful results came and talks for negotiation failed. The respondent filed on record the affidavit of Shri Azad, however, Shri. Azad failed to appear before this court as a witness. The respondent DW1 deposed in his cross examination that he cannot tell the name of the people who joined the meeting at the house of Azad. As the respondent has failed to specify the name of the arbitrator choosen by the petitioner's family and the arbitrator choosen by his family, the respondent has miserably failed to establish attempts for reconciliation being made between the parties by :11: two arbitrators.
In view of the foregoing reasons the respondent has failed to prove valid divorce being effected between the parties. It is also pertinent to mention here that the triple talaq was pronounced on 1172005 which is after the filling of the present petition for maintenance i.e. 952005. As divorce could not be proved the petitioner continues to be the legally wedded wife of the respondent.
(b) &(c) The petitioner has been able to establish that she has reasonable grounds to reside separate from the respondent. The respondent/RW1 deposed that on 21.11.2006 he has solemnized marriage with Ms. Zeba. Admittedly the respondent has solemnized second marriage and the respondent has not made provision for separate residence of the petitioner, hence the petitioner has sufficient grounds for residing separately from the respondent. The respondent has not claimed to have made any provision for the maintenance of the petitioner during the period of separation, hence the factum of neglect on the part of respondent is duly proved.
(d) Now coming to the incapability of the petitioner to survive on her own. The respondent/RW1 for the first time in his examination in chief deposed that the petitioner is skilled in embroidery work and is earning Rs. 2000/ from the said job. In his reply the respondent has not taken the said plea regarding the employment of the petitioner. The respondent has not :12: specified the place where the alleged embroidery work is being carried out by the petitioner. The respondent has failed to show that the petitioner is earning and is capable to survive on her own as no cogent evidence has been adduced. On the other hand, the respondent has not come up with any material to show that he is incapable to command income. The respondent/RW1 has deposed in his examination in chief that he is doin7g the work of packing of Ladies inner wears in a shop, Ravi Beauty Store, Sadar Bazar, Delhi6, as a Labour on daily wages and gets Rs. 90/ day. He has relied upon the income certificate which is Ex. DW1/1. In his written statement the respondent stated that he is employed in a factory of his uncle. The respondent did not examine any employee of Ravi Beauty store or his employer Sh. Ravi or his uncle so as to prove his employment and income. The petitioner/PW1 and her father/PW2 have deposed that the respondent is running a factory in the name and style of M/S M.D Hussain and is earning Rs. 25,000/ per month. In support of this plea the petitioner has filed on record the visiting card which is Ex.PW1/J. The respondent produced Sh. Mohd. Shahid S/o Sh. Mohd. Manzoor Hussain Ansari as DW6 who claimed that he is a tenant of the mother of the respondent and the said factory is being run by him and the visiting card Ex. PW1/JH is his visiting card used by him for business purposes.The petitioner has failed to examine any neighbour or any dealer or customer of respondent so as to prove that it :13: is the respondent, who is running the factory of innerware as claimed. No books of account, sales tax certificate etc have been filed on record. Though petitioner / PW1 has deposed that respondent is running a purchoon shop, PW1 has failed to specify the address when the alleged shop is being run. No cogent evidence has been adduced by either of the parties regarding the employment of the respondent and his income. In these circumstances the respondent is presumed to be earning Rs4,000/ p.m as per Minimum Wages Act. Having regard to the income of the respondent and responsibilities and liabilities, the petition is accordingly decreed with direction to respondent to make an arrangement @ Rs.1,500/ per month in favour of petitioner from the date of filing of the present petition. The amounts if received by the petitioners subsequent to any orders shall be adjusted.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER) ON 13102009 MM/MAHILA COURTS