Delhi District Court
Smt. Salma Khan vs Sh. Imtiyaz Saqeer Khan on 12 March, 2010
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IN THE COURT OF MS. SHUCHI LALER, MM
(MAHILA COURTS), KKD DELHI
CASE NO. 140/04
IN THE MATTER OF
Smt. Salma Khan
w/o Sh. Imtiyaz Saqeer Khan
d/o Sh. Amin Miyan
r/o G192, Dilshad Colony,
Delhi - 110 095 .......... petitioner
Versus
Sh. Imtiyaz Saqeer Khan
s/o Sh. Saqeer Khan
r/o 12 & 13, Prateek Residency,
Vidya Nagar, 67/1B/23, Tingre Nagar,
Pune, Maharashtra.
Presently residing at
Al Ghurair Enterprises
LLC, Post Box NO. 8547,
UAE, Dubai .......... respondent
Date of institution : 31052004
Date on which the judgement has been reserved : 12032010
Date of judgement : 12032010
PETITION U/S 125 CR.P.C. FOR THE MAINTENANCE
ON BEHALF OF THE PETITIONER
JUDGEMENT
Vide this judgement, I shall decide the petition U/s 125 Cr.P.C. for grant of maintenance moved by petitioner wherein it is stated that petitioner P.........1/9 : 2 : got married to the respondent on 31101999 as per Shariyat Laws and Rites and after marriage, the petitioner joined the matrimonial home which was very small in size, all the inlaws of the petitioner lived there including the family of the uncle of the respondent. It has been alleged that the nature of the respondent was greedy and the respondent wanted to become rich overnight and in order to get money, the respondent mortgaged gold ornaments of petitioner several times and the same were got released after making payment by the parents of the petitioner. It is alleged that at the time of engagement of the petitioner, Rs.51,000/ was paid to the respondent by the parents of the petitioner and at the time of marriage, Rs.1,50,000/ were paid to the respondent. It is averred that the respondent got chance to get job abroad and he flew to Dubai for the purpose of employment in the month of September, 2001 as Analyst Programmer with the company namely "Al Ghrair Enterprises" LIC, Post Box No. 8547, UAE Dubai on a salary of Rs.70,000/ p.m. and at present the respondent is drawing the salary of more than Rs.1 lakh. It is alleged that after the departure of the respondent to Dubai, the inlaws of the petitioner started torturing the petitioner and she was given merciless beatings by her inlaws and the petitioner was forced to eat with Munir uncle with the ulterior motive to degrade the health of the petitioner as the Munir uncle was a chronic tuberculosis patient. It is stated that the petitioner narrated the complete torture to the respondent through correspondence but the respondent did not pay any heed to the condition of the petitioner. The respondent used to visit India once in a year in the month of September and the petitioner from the very beginning insisted for P.........2/9 : 3 : preparation of her passport, but neither the respondent nor his family members made any effort for preparation of the passport and the respondent never provided his residential address of Dubai to the petitioner. It is averred that the respondent and his family members demanded Rs.5 lakhs to settle the business of the brother of the respondent. It is alleged that on 1703 2004, the petitioner came to know through email that the respondent was already married before solemnization of the marriage with the petitioner and the respondent is having one child and the respondent is living at Dubai alongwith his wife and child, the petitioner tried to ascertain the fact of second marriage of the respondent from the family members of the respondent but none of them gave satisfactorily reply, however, they started torturing the petitioner and threatened to kill the petitioner in case she asked about the previous marriage of the respondent. It is also alleged that both the sisters of the respondent also subjected the petitioner to physical beatings and openly told that official wife of the respondent is living with him at Dubai alongwith one child. It is stated that since 23042004, the petitioner is living at her parental home at Delhi and she has no source of income and is totally dependent upon her parents. It has been claimed that the respondent is working in Dubai and drawing more than Rs.1 lakh approximately and as such maintenance amount @Rs.20,000/p.m. for the petitioner is prayed.
2. Reply has been filed wherein the factum of marriage has been admitted by the respondent. The respondent has stated that he has divorced the petitioner on 20122004 and he is regularly maintaining the petitioner and transferring the money to her through UAE Exchange in the account of P.........3/9 : 4 : petitioner with Punjab National Bank, Tingrenagar A/c No. 9549. It is alleged that the petitioner refused to live in her matrimonial home and withdrawn from the society of the respondent. The respondent has stated that all the istridhan have been received by the petitioner through CAW Cell, Delhi as well as a sum of Rs.2.25 lakhs through the court while granting bail to the respondent and his family members. The respondent has admitted that he did MCA. The respondent has denied that he is employed with the company namely "Al Ghrair Enterprises" LIC, Post Box No. 8547, UAE Dubai on a salary of Rs.70,000/ p.m. and at present the respondent is drawing the salary of more than Rs.1 lakh and has claimed that he is employed as Software Consultant and is being paid total of Dhs. 6316.00. The respondent has stated that he has to pay a sum of Dhs. 19,000/ per year as house rent and he has to pay insurance premium of Rs.13,193/ half yearly. The respondent has stated that the job in Dubai is not permanent and the services of the respondent can be dispensed with any time by the employer and also with the change in government policies. The respondent has submitted that the respondent is married in Dubai with the consent of the petitioner as after operation she could not bear the child. It is alleged that the petitioner has filed a petition u/s 498A/406 PC and has received Rs.2.25 lakhs from the respondent. The respondent has admitted that he is working in Dubai.
3. The petitioners preferred to file replication wherein the assertions to the contrary have been controverted and has reiterated the facts stated in the petition.
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4. The petitioner has examined herself as PW1 and has tendered her evidence by way of affidavit, which is Ex.PW1/A bearing her signatures at point A & B. In support of her oral testimony, the petitioner has relied upon documents MarkA to MarkH and has reiterated the facts stated in the petition. Despite several opportunities, the respondent did not prefer to lead evidence, hence, vide order dated 06012010, the respondent evidence was closed.
5. I have heard the Ld. Counsel for the petitioner 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, b. the ground for her residing separately, which should be reasonable and sufficient to make her entitled for the relief, c. the factum of 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 has stated that on 20122004, he has divorced the petitioner. The petitioner in her cross examination denied the suggestion that the respondent has divorced her on 20122004 and the effect P.........5/9 : 6 : of divorce was duly informed to her.
The Honorable Delhi High Court in judgment titled as 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 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.
The respondent has failed to fulfill the aforesaid prerequisite as the respondent has not led any evidence. As the respondent has failed to prove P.........6/9 : 7 : the factum of divorce being effected between the parties. The petitioner continues to be the legally wedded wife of the respondent.
(b) &(c) As regards the ground for living separately, the petitioner has deposed that the respondent pursued his job at Dubai and after the departure of the respondent to Dubai, the inlaws of the petitioner started torturing her and gave merciless beatings to her and the respondent refused to take the petitioner to Dubai. The petitioner in her cross examination has stated that on 17032004, she came to know that the respondent has performed second marriage through email. The petitioner further deposed that her sistersin law subjected her to physical beatings and the family members of the respondent treated her with cruelty. A case u/s 498A/406 IPC is pending adjudication against the respondent and his family members. Admittedly, the respondent having solemnized second marriage and the respondent has not claimed to have any provision for separate accommodation of the petitioner, hence, the petitioner has sufficient grounds to reside separate from the respondent. In his reply, the respondent has claimed that he has been regularly maintaining the petitioner and has been transferring money through UAE Exchange in the A/c No. 9549 of the petitioner with Punjab National Bank, Tingrenagar. The respondent has failed to adduce any evidence in support of this averment. The petitioner in her cross examination admitted that her husband used to send money to her towards pocket expenses. The petitioner volunteered and stated that the respondent has sent money to her only till February, 2004.
In view of the above, it is established that the respondent has P.........7/9 : 8 : failed to make provision for the maintenance of the petitioner during the period of separation since February, 2004. The factum of neglect on the part of the respondent is duly proved.
(d) Now coming to the incapability of the petitioner to survive on her own. The petitioner / PW1 in her examination in chief has deposed that she has no source of income and she is totally dependent upon her parents. In the cross examination of the petitioner, no suggestion or question has been put to her regarding her capability to command income. Further, the respondent has not led any evidence to prove the employment of the petitioner, hence, the petitioner being incapable to survive on her own, is entitled to claim maintenance from the respondent.
Now coming to the quantum of maintenance. The petitioner / PW1 has deposed that the respondent is working in Dubai and is drawing salary of about Rs.2 lakhs p.m. The petitioner in her cross examination has deposed that the respondent is employed in a company Al Ghurair Enterprises, Dubai. The petitioner denied the suggestion that the respondent has been terminated from his services w.e.f. March, 2009 and is presently jobless. The respondent has failed to adduce evidence regarding his employment and his salary being Dhs. 6316.00. In the absence of any material to the contrary, the version of the petitioner regarding the employment and the income of the respondent appears to be of much credence. 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.15,000/ per month in favour of petitioner from the date of filing of the present P.........8/9 : 9 : petition. The amounts if received by the petitioner subsequent to any orders shall be adjusted.
Payment shall be made by 10th of every month by money order or be deposited in the bank account of the petitioner. Arrears shall be cleared within 3 months. The amounts if received by the petitioner subsequent to any orders shall be adjusted.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (SHUCHI LALER)
ON 12032010 MM/MAHILA COURTS
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