Madras High Court
M.Mohamed Ibrahim vs M.Inul Marliya on 22 September, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.09.2015 CORAM THE HON'BLE MRS.JUSTICE S.VIMALA Crl.R.C.(MD) No.114 of 2015 and M.P.(MD) No.1 of 2015 M.Mohamed Ibrahim ... Petitioner/Respondent Vs. 1. M.Inul Marliya 2. Minor M.Mohamed Fazil 3. Minor M.Mohamed Yasith ... Respondents/Petitioners PRAYER: This Criminal Revision Case has been filed filed under Section 397 r/w 401 Cr.P.C., to call for the records in M.C.No.9 of 2012 on the file of the learned Chief Judicial Magistrate, Ramanathapuram and to set aside the order dated 18.12.2014. !For Petitioner : No Representation ^For Respondents : Mr.V.Paneer Selvam For M/s.C.S.Associates :O R D E R
Rs.1,500/- to each of you, i.e. to the wife and to each of the two children. This is the order under challenge by the respondent in M.C.No.9 of 2012 / revision petitioner herein.
2. The respondents herein aged 31, 12 and 12 respectively filed the a petition for maintenance claiming a sum of Rs.3,000/- each.
3. It was the case of the wife that on account of the demand for dowry, she was not permitted to live with her husband and despite, the premature birth of respondents 2 and 3, the revision petitioner did not take care to take them back. It was alleged that the revision petitioner is the owner of an Auto and also a dealer in foreign goods earning a sum of Rs.20,000/- and despite having sufficient means, the revision petitioner refused and neglected to maintain the respondents herein.
4. The claim of the wife and children are opposed by the revision petitioner on the ground that the wife is not eligible to claim maintenance as she is living separately on her own accord and that he is only earning a sum of Rs.150/- per day as an Auto driver / Coolie and therefore, he is not in a position to maintain the children.
5. It is claimed that the wife is also ineligible to claim maintenance, as the husband has granted Mutalaq to his wife on 29.06.2011.
6. The Court below rejected all the contention of the husband and directed the husband to pay maintenance. This order is under challenge in this revision petition.
7. The main contention in the revision petition is that as per Section 125(4) of Cr.P.C., the wife is not eligible to claim maintenance. Three grounds are mentioned in Section 125(4) Cr.P.C. to make the wife incompetent to claim maintenance. They are,
a) if the wife is living in adultery or;
b) if the wife refused to live with her husband without any sufficient reason or;
c) if the husband and wife are living separately by mutual consent.
8. The husband has taken mutually contradictory pleas, which are destructive of each other. If the case of the husband is that he pronounced Mutalaq and divorced his wife, there is no question of the wife refusing to live with the husband without sufficient cause. Therefore, it is for the Court to find out whether the husband has proved the fact that he has divorced his wife. The only material placed on record is the three notices addressed to the wife intimating her that the husband is pronouncing triple- talaq. Whether sending of notices alone can be construed as amounting to the marital relationship having been brought to a grinding halt. Three conditions required to pronounce triple-talaq have been the subject matter of judicial decision and the Hon'ble Supreme Court in the case of Shamim Ara vs State Of U.P. & Another, 2002 AIR SCW 4162, laid down the conditions to be followed / proved for the purpose of proving the triple-talaq. The relevant observation reads as under:
?The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters __ one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. (Para 13). In Rukia Khatun's case, the Division Bench stated that the correct law of talaq, as ordained by Holy Quran, is: (i) that 'talaq' must be 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 Division Bench expressly recorded its dissent from the Calcutta and Bombay view which, in their opinion, did not lay down the correct law. ?
9. This view, which is binding upon all Courts, has been quoted by the Division Bench of Madras High Court in the case of A.S.Parveen Akthar vs The Union Of India and has specifically highlighted the Paragraph No.13 of the judgment in Shamim Ara, which reads as under:
?13. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim law? The learned Judge observed that though marriage under the Muslim law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But inspite of the sacredness of the character of the marriage-tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. (Para 6). Quoting in the judgment several Holy Quranic verses and from commentaries thereon by well- recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook.?
10. Going by the prerequisites required to effect Talaq, the evidence available before this Court do not show that there is valid Talaq. Neither there is an evidence to show that there had been a reasonable cause nor there is evident to show that Talaq is preceded by attempt for reconciliation.
11. Instead of examining the requirement on the part of himself (husband) to take effective steps for reconciliation and reunion, the husband has commented that the wife has not taken any steps for reunion. It is not as if that it is not necessary on the part of the wife to take any steps for reunion. When the prevailing circumstances in the house of the husband has driven the wife to the house of the parents and with premature twin babies in two hands, the wife is unlikely to think of going back to the unhelpful husband. It is to be pointed out that within 10 years period of the marital life, the husband has visited the wife only twice during the marriage of his sister-in-law.
S.VIMALA,J.
ar
12. Under such circumstances, the husband cannot escape from the liability to pay maintenance to the wife and children.
13. Coming to the quantum of maintenance, the amount of maintenance ordered is a petty sum of Rs.1,500/- to each of them. This has been ordered in the year 2014. The possibility of settlement could not be worked out as neither the husband nor his counsel appeared in this case.
14. Considering the cost of education and the cost of living of today, the meagre amount of Rs.1,500/- per month would not be enough to meet out the hand to mouth existence. Therefore, the revision petition has no merits and the revision petition is dismissed. Consequently, connected miscellaneous petition is closed.
To:
Chief Judicial Magistrate, Ramanathapuram .