Calcutta High Court
Kousher Ali Laskar vs Moslema Bibi And Anr. on 24 March, 2000
Equivalent citations: I(2001)DMC350
JUDGMENT Ranjan Kumar Mazumdar, J.
1. The instant criminal revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure is at the instance of Shri Kousher Ali @ Kousher Ali Laskar, the petitioner, who happened to be the husband of opposite party No. 1-Moslema Bibi and this is directed against the order dated 14.9.1998 passed by the learned Additional Sessions Judge, 1st Court, Howrah in Criminal Motion No. 1 of 1998.
2. The case of the petitioner was in brief that his wife being opposite party No. 1-Moslema Bibi filed an application under Section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, Uluberia, Howrah, claiming maintenance for herself. The said misc. case being Misc. Case No. 101/95 was disposed of by the learned Magistrate concerned on 12.7.1996 with a direction that the petitioner should pay maintenance at the rate of Rs. 750/ - per month to opposite party No. 1-wife from the date of order, viz. 12.7.1996. Since the petitioner had been suffering from Tuberculosis and was unable to perform his normal duties, he could not pay the maintenance to his wife in the midst of his untold misery and sufferings. Nonetheless the petitioner tried his level best to bring back opposite party No. 1-wife, who, however, deliberately refused to come back to the matrimonial home. In such circumstances the petitioner had no other alternative but to pronounce 'Talak' on 10.8.1996 according to Muslim Rites and Customs in the presence of witnesses. The said 'Talaknama' was reduced into writing by Moulana Mufte Abdul Hamid Muzahari, Chief Imam of Uluberia Jamma Masjid, Howrah and the factum of Talak was duly communicated to the opposite party-wife. Thereafter, the petitioner-husband filed an application under Section 127 of the Code before the Court of learned Judicial Magistrate, Uluberia and made a prayer for quashing the order of maintenance as passed against him on the ground that opposite party No. 1-wife was not entitled to get maintenance from the petitioner-husband as per provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986 having been divorced by the petitioner vide 'Talaknama' dated 10.8.1996. Such a petition of the petitioner-husband under Section 127 of the Code was disposed of by the learned Magistrate concerned on 23.9.1997 passed in Misc. Petition No. 3/96 holding inter alia that the opposite party No. 1, being a divorcee shall be entitled to get maintenance at the rate of Rs. 750/- per month for the period beginning from the date of order, viz, from 12.7.1996 till the date when opposite party-wife came to know about the Talak, viz. 29.4.1997. Being aggrieved by such an order, the opposite party No. 1-wife filed a Criminal Motion being No. 1/98 before the learned Additional Sessions Judge, 1st Court, Howrah praying for quashing the impugned order passed by the learned Judicial Magistrate on 23.9.1997 in Misc. Petition No. 3/96. The said criminal motion was disposed of by learned Additional Sessions Judge, 1st Court, Howrah on 14.9.1998 holding inter alia that the learned Magistrate concerned committed error by allowing the application of the petitioner-husband under Section 127 of the Code. According to the learned Additional Sessions Judge, 1st Court, Howrah, the factum of Talak allegedly given by the petitioner-husband has not been proved and so the petition filed by the petitioner-husband has not been proved and so the petition filed by the petitioner-husband under Section 127 of the Code for modification/ change/ alteration of the earlier order of maintenance dated 12.7.1996 was liable to be dismissed. Being aggrieved by such a finding, the petitioner-husband has filed the instant revisional application for quashing the said order of the learned 1st Additional Sessions Judge passed in Criminal Motion No. 1 of 1998 on -14.9.1998.
3. I have had the opportunity of hearing learned Counsel for both the parties at length in the matter.
4. The only question requiring consideration in this hearing was whether the order passed by learned Additional Sessions Judge, 1st Court Howrah in Criminal Motion No. 1/98 on 14.9.1998 whereby the said Court set aside the order passed by the learned Judicial Magistrate, Uluberia, Howrah under Section 127 of the Code of Criminal Procedure in Misc. Petition No. 3/96 dated 23.9.1997, should be quashed as prayed for by the petitioner-husband or not.
5. At the time of hearing, learned Counsel for the petitioner-husband vehemently submitted that his client divorced the opposite party-wife in accordance with the provisions contained in Section 2(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 on 10.8.1996 by executing a Talaknama, which was reduced into writing by Moulana Mufte Abdul Hamid Muzahari, Chief Imam of Uluberia Jamma Masjid, Howrah. He further submitted that at the time of the said divorce, witnesses were duly present and that the factum of Talak was duly communicated to the opposite party-wife on 29.4.1997. He further submitted that reasons for such Talak were also duly assigned by his client in the said Talaknama, as required under the Mohammedan Law. Thus, according to the learned Counsel for the petitioner-husband the factum of such divorce has been proved by cogent evidence in the proceeding under Section 127 of the Code and hence the order passed by learned Judicial Magistrate, Uluberia, Howrah on 23.9.1997 in Misc. Petition No. 3/96 was perfectly lawful and proper. Accordingly the order passed by learned Additional Sessions Judge, 1st Court, Howrah on 14.9.1998 in Criminal Motion No. 1/98 setting aside the order of the learned Judicial Magistrate dated 23.9.1997 was highly irregular, improper and illegal and hence the said order of learned Additional Sessions Judge dated 14.9.1998 should be quashed.
6. Learned Counsel for the opposite party-wife submitted, on the other hand, that the order passed by the learned Additional Sessions Judge, 1st Court, Howrah on 14.9.1998 was perfectly lawful and proper inasmuch as the factum of divorce has not been proved in this case by the petitioner-husband according to the standard of proof required under the Mohammedan Law and also under Section 2(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. His further submission was that the petition filed by the petitioner-husband under Section 127 of the Code was also not maintainable in the facts and circumstances of the case and hence the present criminal revisional application was liable to be dismissed under the law.
7. A copy of the Talaknama dated 10.8.1996 as executed by the petitioner-husband is on record. A look into this document indicated that the same was duly executed by the petitioner before the Chief Imam of Uluberia Jamma Masjid, Howrah in the presence of several witnesses. The reasons for giving such Talak has also been recorded in the said document. Besides it appears that in the proceeding under Section 127 of the Code before the learned Judicial Magistrate, Uluberia, Howrah, several witnesses were examined on the side of the petitioner-husband. Based on such oral and documentary evidence, learned Judicial Magistrate concerned was satisfied that the factum of divorce has been proved according to law. In the said proceeding opposite party-wife and her other witnesses were also examined. But their evidence were not accepted by the learned Judicial Magistrate concerned. Since the witnesses were examined and cross-examined before the learned Judicial Magistrate concerned, the said Court was in a better position to ascertain and come to the conclusion as to which evidence was acceptable and which was not. Accordingly the finding recorded by the learned Judicial Magistrate appears to be more appealing and convincting.
8. It has been observed by a Division Bench of this Court on a reference application in the case Abdul Sattar v. Sahani Bibi and Anr., as reported in 1989 C Cr. LR (Cal.) 197=I (1991) DMC 275, that there may be cases where the Court while passing an order of maintenance under Section 125 of the Code passed an order in favour of a wife, not being a divorced wife, and that after such an order was passed by the Court, the wife concerned might be divorced by the husband. In such an eventuality, the said subsequent divorce given by the husband to his wife is in accordance with Muslim Law as contemplated by Section 2(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and hence the order imposing liability on the husband to maintain the wife as passed under Section 125 of the Code will cease. According to the further observation of the said Division Bench of this Court, either party to the maintenance proceeding under Section 125 of the Code was entitled to file an application under Section 127 of the Code in such circumstances for vacation of the original order of maintenance on proof of the factum of divorce as contemplated by Section 2(a) of the Act, 1986. This decision of the Division Bench of this Court was also echoed by a Single Bench of this Court in the case Motiar Rahman v. Sabiha Khatun and Anr., as reported in 1994 C Cr.LR (Cal.) 48=II (1994) DMC 57=II (1994) CCR 1260. It appears that in the instant case the opposite party-wife gets an order of maintenance at the rate of Rs. 750/- per month in a proceeding under Section 125 of the Code initially on 12.7.1996 vide order passed by the learned Judicial Magistrate, Uluberia in Misc. Case No. 101/95. Thereupon the husband moved the said Court by filing an application under Section 127 of the Code for variation/charge/alteration of the initial order on the ground that he has divorced his wife subsequently by executing a Talaknama on 10.8.1996. It appears that in the said proceeding under Section 127 of the Code, learned Judicial Magistrate, Uluberia considered the evidence adduced by both the parties and also the Talaknama filed by the husband and came to the conclusion that the divorce having been proved and communicated on 29.4.1997, the wife will be entitled to get maintenance from the date of initial order, viz. with effect from 12.7.1996 to the date of communication of the divorce, viz. upto 29.4.1997. Thereafter the wife moved the learned Additional Sessions Judge, 1st Court, Howrah in Criminal Motion No. 1/ 98 and obtained an order on 14.9.1998 whereby the said Court set aside the subsequent order of the learned Judicial Magistrate passed on 23.9.1997 in Misc. Petition No. 3/ 96 under Section 127 of the Code. Upon a consideration of all material as available on record including the Talaknama executed on 10.8.1996 by the husband before the Chief Imam of Uluberia Jamma Masjid, one cannot but come to the reasonable conclusion that the factum of divorce of the wife by the husband has been duly proved in accordance with the provisions of Mohammedan Law and also the provisions contained in Section 2(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the facts and circumstances of the case it cannot be said that the proceeding under Section 127 of the Code is inapplicable in this case. The order passed by the learned Additional Sessions Judge, 1st Court, Howrah dated 14.9.1998 in Criminal Motion No. 1/ 98 is, therefore, liable to be set aside and that the order passed by learned Judicial Magistrate, Uluberia, Howrah, passed in Misc. Petition No. 3/96 on 23.9.1997 should be restored there being no irregularity, illegality or impropriety in the said order dated 23.9.1997.
9. Upon a consideration of the facts and circumstances of the case and having due regard to all the materials as available on record the order passed by the learned Additional Sessions Judge, 1st Court, Howrah in Criminal Motion No. 1/98 on 14.9.1998 is hereby quashed and set aside. The order dated 23.9.1997 passed by the learned Judicial Magistrate in Misc. Petition No. 3/96 under Section 127 of the Code is restored. The instant criminal revision application is thus allowed in favour of the petitioner-husband.
10. There will be no order as to costs.
11. Urgent xerox certified copy, if applied for by the parties, be given to them within 10 (ten) days from the date of application.