Allahabad High Court
Smt. Zahida Anjum vs State Of U.P. And Another on 26 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:148854 A.F.R. Reserved on 9.5.20223 Delivered on 26.7.2023 Court No. - 93 Case :- CRIMINAL MISC. WRIT PETITION No. - 7948 of 2005 Petitioner :- Smt. Zahida Anjum Respondent :- State of U.P. and Another Counsel for Petitioner :- Rishikesh Tripathi Counsel for Respondent :- Govt. Advocate,A.R. Dwivedi,Manish Dwivedi,Prabhakar Tripathi Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Rishikesh Tripathi, learned counsel for the petitioner, Sri Manish Dwivedi, learned counsel for respondent no.2, Sri O.P. Mishra, learned A.G.A. for the State and perused the record.
2. By means of this criminal misc. writ petition under Article 226 of the Constitution of India, the petitioner- Smt. Zahida Anjum has prayed for issuance of writ of certiorari to quash the judgment and order dated 06.05.2005 passed by Additional District & Sessions Judge in Criminal Revision No.173/2004 (connected with criminal revision no.212 of 2004) and also seeking issuance of mandamus commanding respondent no.2 to pay maintenance amount of Rs.5000/- per month to the petitioner from the date of application under Section 125 Cr.P.C.
3. Relevant facts giving rise to this petition are as below:-
The petitioner moved an application seeking maintenance from her husband-respondent no.2, Atiqur Rahman before the Magistrate concerned in 2001. The trial court passed an order on 30.06.2004 and awarded Rs.1500/- per month in her favour as maintenance, payable from the date of the order. Challenging above order the petitioner as well as respondent no.2 preferred separate criminal revisions, Criminal Revision no.212 of 2004 seeking enhancement of maintenance amount by the petitioner and Criminal Revision No.173 of 2004 filed by her husband seeking to set aside the maintenance order. The learned revisional court dismissed revision filed by the petitioner and allowed the revision of respondent no.2 quashing the maintenance order by passing a common order dated 06.05.2005.
4. Following contentions are raised by the petitioner:-
Petitioner was never divorced and false plea of divorce was taken by her husband in written statement for the purpose of stalling the grant of maintenance. Respondent no.2, to stress his plea of divorce could only file photocopy of talaqnama that too at a very late stage of the trial, hence the plea of divorce was quite doubtful; learned trial court took correct view that the petitioner was entitled for maintenance; the petitioner was never paid any amount of dower nor any other amount to maintain her during "iddat" period; learned revisional court wrongly set-aside the order of Magistrate on the basis of assumptions and conjunctures; the view taken by revisional court was not supported by the evidence on record.
5. On the other hand, respondent no.2 has averred that he divorced his wife by pronouncing talaq three times (triple talaq) in a Panchayat held on 20.04.2004; the Panchayat was attended by father and relatives of his wife; the plea of triple talaq was categorically mentioned in his written statement filed before the trial court; no replication/additional reply to counter the above averment was ever given by his wife; he paid amount of dower and maintenance for "iddat" period; that because she is a divorcee, therefore, she is not entitled for any relief under the provisions of section- 125 Cr.P.C.; section- 3 of Muslim Women (Protection of Rights on Marriage) Act, 2019 shall apply in such circumstances.
6. The petitioner has filed "written arguments" before this Court. In addition to the contentions mentioned in para-4, it is argued that:-
(i) The plea of divorce is not acceptable and further such plea cannot impinge upon her right to obtain maintenance under Section 125 Cr.P.C. in the light of pronouncement of judgement of Hon'ble Supreme Court in Shamim Ara vs. State of U.P., 2002 Crl.L.J. 4726.
(ii) It was mandatory to attempt for reconciliation between the parties, hence, any divorce without such attempt is illegal.
(iii) The revisional court gave the findings ignoring both the points of law just mentioned above.
(iv) If for argument sake, the petitioner is considered as divorcee, she has not re-married till yet. And therefore, in view of the judgment of Hon'ble Supreme Court in Shabana Bano vs. Imran Khan, 2009 AIR SCW 7490, she is entitled for maintenance so long she did not re-marry.
(v) Grant of divorce by pronouncing triple talaq is illegal in view of the judgment of Hon'ble Supreme Court in the case of Shayara Bano vs. Union of India in Writ Petition No.118 of 2016, therefore, triple talaq cannot be a ground for denial of maintenance under Section 125 Cr.P.C.
7. First and foremost objection has been raised by the learned A.G.A. and learned counsel for the respondent no.2 that a judicial order is not amenable to the original writ jurisdiction of the High Court under Article 226 of the Constitution of India. It is pointed out by the State that in this case the prayer is to quash the judgement and order dated 06.05.2005 passed in a revision.
8. To stress above point, judgement of Hon'ble Supreme Court in the case of Radhey Shyam and another vs. Chhabi Nath and others, (2015) 5 SCC 423 has been referred to. The apex court in the aforesaid judgment held that writ of certiorari lies to bring decisions of an "Inferior court", tribunal, public authority or any other body of persons for review so that the court may determine whether they should be quashed or not. However, expression "interference" the court is not referable to the judicial courts Writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. The Apex Court in para 25 further observed as below:-
"25. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227.Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts."
9. Thus, it has been clearly laid down that order of civil court could be challenged under Article 227 of the Constitution of India and not under original writ jurisdiction under Article 226 of the Constitution of India.
10. At the same time, it is conceded that a writ petition under Article 227 of the Constitution of India may be maintainable against such an order and that there is no legal bar in converting the writ petition filed under Article 226 of the Constitution of India to one under Article 227 of the Constitution of India in the peculiarity of the circumstances to serve interest of justice.
11. I glanced over the facts and circumstances of this case. The most important facts which draw my attention are; the petitioner Zahida filed an application under section- 125 Cr.P.C. with a prayer to grant maintenance in the year 2001, the same was decided in the year 2004; the opposite party no.2 (her husband) filed a revision in 2004 which came to be decided on 06.05.2005; the wife (present petitioner) challenged that order on 14.07.2005 and the matter is pending before this Court since then i.e. last 17 years. All this while, this legal point was neither raised nor realized that this writ petition seeks to invoke powers under Article 226 instead of Article 227 Constitution of India . This is settled law that non-mentioning or wrong mentioning of provisions of law should not come in the path of granting appropriate relief, if the litigant otherwise is entitled for the same. In my view, an ordinary litigant cannot be expected of having too minute knowledge of provisions of law. This question has always been troubling my judicial conscience that what a common man or ordinary litigant has to do with the provision of law under which he may be entitled for relief. This should be the concern of the Court of law or Court of justice or his counsel/advocate. Where no other deterrent except non mentioning or wrong mentioning of law poses a hurdle in the winding path to justice, the judge ought to play its expected role. The Judge or the Court shall be failing in its duty towards an ordinary man/litigant by not looking for solutions and dismissing the writ on technical ground. In this view of the matter, I find it fit to treat this petition as one moved under Article 227 of the Constitution of India.
12. In this regard I draw support from another judgement of Supreme Court in Pepsi Foods Ltd. and Another vs. Special Judge Magistrate and Others, (1998) 5 SCC 749, in which it has been held that:-
"Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court find that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code, it may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."
In view of the facts and circumstances of the case, I am treating this petition as one under Article 227 of the Constitution of India.
13. Two fold legal questions are involved in this case. Firstly, whether the revisionist (the instant petitioner herein) could have been treated as a divorcee and in case such a claim, if found acceptable, whether she will be entitled for grant of maintenance under section- 125 Cr.P.C.? I went through the submissions of both the sides and the laws pronounced by Hon'ble Supreme Court in Shamim Ara (supra), Shabana Bano (supra) and Shayara Bano (supra).
14. I choose to look at the law chronologically; in Shamim Ara vs. State of U.P. pronounced in the year 2000, the Apex Court had to deal with the question of pronouncement/proclamation of "Talaaq", its proof and the repercussions in a case before it. It may be noted that in that case before the Apex Court, the contention was that husband pronounced "Talaaq" on 11.07.1987; the plea was mentioned in the written statement filed on his behalf on 05.12.1990; it was argued by the other side that by filing a written statement in which the fact of "Talaaq" has been mentioned, the communication as to pronouncement of "Talaaq" stood completed on that date itself, therefore she shall be treated as divorcee from the date of filing of written statement. The Apex Court held as below:-
"16. We are also of the opinion that the talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p.1030). There is no proof of talaq having taken place on 11.7.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaaq on the date of delivery of the copy of the written statement to the wife. The respondent No.2 ought to have adduced evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31.8.1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent no.2, could not have been read in evidence as relevant and of any value."
15. The Calcutta High Court in Saheda Khatoon vs. Gholam Sarwar, 2002 Cri.L.J. 4150, took a similar view regarding proof of pronouncement of "Talaq". In para-6 of the judgement, the High Court observed as below:-
"It will be a dangerous proposition to say that now that the O.P. has given a statement in his written objection to the effect that he divorced his wife on any particular date, that statement should be taken to indicate that the alleged fact of divorce is thereby being communicated to the wife. The question of such communication through the averments in the pleadings could arise only if it was held that the alleged giving of divorce has been proved by the husband. But since in this case it has been held by him that the story of divorce has not been substantiated by trustworthy evidence, the question of its communication loses significance."
16. I perused the judgement of the revisional court; the learned revisional court decided two revisions; one filed by the wife and the other filed by the husband. Even a casual glance on the judgement given by the revisional court gives a clear indication that revisional court re-evaluated and re-assessed the evidence given by the parties in the proceeding under section- 125 Cr.P.C. and gave a clear finding that the husband had divorced his wife by pronouncing "Talaaq" three times, therefore the wife shall not be entitled for any maintenance under the provisions of section- 125 Cr.P.C. and that from that moment, the provisions of section-3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 shall come into play. After evaluating evidence afresh, the revisional court set-aside the judgement of the trial court and allowed the revision filed by husband and dismissed the revision filed by the wife.
17. In my view, a legal question therefore obviously arises whether it was legally permissible for a revisional court to re-evaluate the evidence afresh and set-aside the judgement of the trial court and reverse the finding? It may be noted that the core issues involved in the case were firstly whether the wife should be treated as a divorcee, in other words whether the plea of divorce taken by the husband was proved? Secondly, whether even if she is treated as a divorcee, her right to obtain maintenance under section- 125 Cr.P.C. came to an end?
18. In my view, on both the issues, the findings given by the revisional court were against law of precedents and against settled principles of law. The judgement was pronounced by the revisional court in 2005, therefore it was imperative upon the revisional court to follow the judgement given by Apex Court in Shamim Ara (supra) in 2002. It may also be noted that in Danial Latifi and Another vs. Union of India, 2001 AIR SCW 3932, the Constitution Bench had held by then that even a divorced Muslim woman would be entitled to claim maintenance from her former husband as long as she does not re-marry. The Constitution Bench observed that being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim woman. That judgement was followed in many of the subsequent cases and the law still holds good. The revisional court instead pronounced the judgment as regard plea of divorce in disregard of law laid down by Apex Court. The laws pronounced by Apex Court are binding under Article 142 of the Constitution of India on all judicial authorities. The impugned judgement is therefore not sustainable in law and is liable to be set-aside.
19. The next question which remains to be seen in this writ petition is what shall be the effect of the judgement of the Supreme Court in Shayara Bano vs. Union of India (supra) on the issues involved in this case. It may be recalled that in the above noted case, the Supreme Court set-aside the practice of "talaaq-e-biddat" i.e. triple talaaq, by majority of 3:2.
20. Ordinarily, the law declared by Supreme Court under Article 141 of the Constitution of India shall be assumed to be law from very inception unless expressly or by necessary implication indicated otherwise.
21. In Major General A.S. Gauraya and Another vs. S.N. Thakur and Another (1986) 2 SCC 709, it has been held in para-13 that :-
"The sweep of Article 141 of the Constitution, so far as the Judgments of this Court are concerned, came up for consideration before this Court recently in Shenoy and Co. v. Commercial Tax Officer, [1985] (2) S.C.C. 512 to which one of us was a party. It is not necessary to refer to the facts of that case, in detail. Suffice it to say that the contention that the law laid down by this Court in an appeal filed by the State would not bind the other parties against whom the State of Karnataka did not file appeals from a common Judgment, was repelled by this Court in the following words:
"....It is, therefore, idle to contend that the law laid down by this Court in that Judgment would bind only the Hansa Corporation and not the other petitioners against whom the State of Karnataka had not filed any appeal. To do so is to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution. Article 141 reads as follows :
"The law declared by the Supreme Court shall be binding on all courts within the territory of India." A mere reading of this article brings into sharp focus its expanse and is all pervasive nature."
22. In Shayara Bano vs. Union of India (supra), the Supreme Court took a view that such a practise of triple talaaq, though largely prevalent in certain sects of the Muslim community, but it was never legal or supported by Sharia.
23. Hence, in the matters, where the issue of rights of the parties are yet to be adjudicated, the law pronounced by the Supreme Court shall be applicable. In this case, the issues involved herein cannot be treated as already adjudicated, hence the law laid down by the Supreme Court would apply.
24. The matter can be seen from another perspective as well; firstly, that merely saying in a written statement that the husband pronounced triple talaaq on such and such date, could not have been taken at its face value and that the husband had a burden to prove the same. Secondly, even if for the sake of arguments, it is assumed that the husband was able to prove that he indeed divorced his wife by pronouncing trible talaaq, wife's right to obtain maintenance shall continue till she does not re-marry. In such circumstances, from whatever angle the matter is taken up, the wife had right to obtain maintenance and a reasonable amount for subsistence, which should have been paid to her within the prescribed time, but could not be limited for that period only. She was having right to obtain maintenance for the period subsequent to "iddat" period as well.
25. On the basis of above discussion, I am of a firm view that the judgement dated 06.05.2005 passed by the revisional court in Criminal Revision No.173 of 2004 was bad in law and is therefore liable to be set-aside. It may be noted as a matter of precaution that the consequent upon setting-aside the judgment of the revisional court, the issue of enhancement of the maintenance amount as was claimed by the wife in Criminal Revision No.217 of 2004 opens up. As the matter is probably one of the oldest, hence the concerned court is directed to decide the same as per law within a period of three months from the date of filing of certified copy of this judgment.
26. Accordingly, this petition is allowed.
Order Date :- 26.7.2023 Saif/Asha