Calcutta High Court (Appellete Side)
Jahedul Islam Khan vs Kulsum Bibi & Anr on 26 August, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1
Form No. J(1)
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Appellate Side
Present
The Hon'ble Justice Ashim Kumar Roy
CRR No. 2803 of 2013
Jahedul Islam Khan
Versus
Kulsum Bibi & Anr.
For the petitioner : Mr. Pradip Paul
Heard on : 13.08.2013
Judgment on : 26.08.2013
Ashim Kumar Roy, J.:
The subject matter of challenge in this case is an order awarding maintenance to the wife- opposite party at the rate of Rs. 1,500/- per month by the court below in connection with a proceeding under Section 125 Cr. P.C. The said order was challenged before this court on the sole ground that when the application for maintenance was moved already, talak was pronounced and she was no more the married wife of the petitioner and her remedy as regards to the question of maintenance was governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is submitted although the talaknama was exhibited, the same was not taken into consideration. I find from the impugned order that no witness was examined to prove the factum of talak nor the factum of the communication of the talak. The observation of the court concerned be quoted below :
"O.P. did not produce any corroborating witness on his behalf. In my view to prove talak, pronouncement of talak in absence of petitioner is not enough. O.P. is under obligation to prove that he uttered talak in presence of witnesses and properly communicated the same to the petitioner. O.P. either in his written objection or in his evidence on oath did not state name of the witness in whose presence he pronounced talak. Neither of those anonymous witnesses was produced by O.P. for adducing evidence. To move proper communication of talak to petitioner, O.P should have 2 examined appropriate person of postal department, but O.P. did not do so. O.P. in his written objection has stated that he got his talak registered, but to prove such fact he did not produce the Registrar and Kazi as his witness. Accordingly, I opine that O.P's marital tie with petitioner still exist and accordingly, petitioner is the legally married wife of O.P. in the eye of law. Thus, point no. 1 is decided in favour of the petitioner".
Having regard to the facts above, I am of the opinion that the learned Magistrate very rightly rejected the contention of the petitioner that the opposite party is not entitled to any maintenance under Section 125 of Cr. P.C. because of the fact already talak has been pronounced against her. Now going through the rest of the order, I find that learned Magistrate has come to a definite conclusion on the materials on record that the wife-opposite party is unable to maintain herself, while the petitioner has sufficient means to take care of her. I am also of the opinion that the quantum of maintenance awarded is also commensurate with the income of the petitioner.
So far as the contention of the learned Advocate of the petitioner that the order is illegal because of the fact it was directed the same to take effect from the date of the application, now having regard to the provision sub-section 2 of Section 125 of the Code of Criminal Procedure I find such contention is not at all tenable.
This criminal revisional application has no merit and accordingly, stands rejected. This order also be communicated to the wife-opposite party.
Criminal Section is directed to deliver urgent xerox certified copy of this order to the petitioner, if applied for, as early as possible.
(Ashim Kumar Roy, J.)