Jharkhand High Court
Fakhrun Nisha vs Md. Anwar @ Bhutka on 11 July, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 343 of 2022
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(Against the order dated 17.07.2017 passed by the learned Principal Judge, Family Court, Dumka in Original Maintenance Case No. 31 of 2015)
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1. Fakhrun Nisha
2. Silpy Parvin .... ....Petitioners
-Versus-
1. Md. Anwar @ Bhutka
2. State of Jharkhand .... ....Opp. Parties
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PRESENT HON'BLE MR. JUSTICE SUBHASH CHAND For the Petitioners: Mr. N.K.Sahani, Advocate For the State : Mr. N.K. Ganjhu, A.P.P.
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C.A.V. on 27.06.2024 : Pronounced on 11.07.2024
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The instant Cr. Revision has been directed on behalf of the petitioners against the order dated 17.07.2017 passed by the learned Principal Judge, Family Court, Dumka in Original Maintenance Case No. 31 of 2015 whereby and whereunder the learned Principal Judge, Family Court, Dumka dismissed the petition filed under Section 125 of Cr.P.C. observing that the petitioner is not entitled to get maintenance from her husband/respondent.
2. The brief facts leading to this Cr. Revision are that the Maintenance Petition under Section 125 of Cr.P.C. was moved on behalf of Fakhrun Nisha and her minor daughter Silpy Parvin claiming maintenance from her husband with these averments that she was married with Anwar-respondent No.1 on 10.03.2014 at Indira Nagar, Jaruwadih according to Muslim law and customs and the couple was blessed with a daughter on 19.01.2015 at St. Urshila Health Centre, Bakshi Bandh Road, Dumka. At the time of marriage household articles and a Hero Honda Motor Cycle details of which is given in the list annexed with the petition under Section 125 of Cr.P.C. were given to respondent-Anwar.
3. Opposite Party on 14.09.2014 asked the petitioner to bring Rs. 1,00,000/- and gold 2 Bhari from her mother's house which was refused by the petitioner. The Opposite-Party assaulted her and dragged her out of the house saying that he will not allow to live her with him unless the same demand is fulfilled. At that time the petitioner was pregnant. When the baby girl was born on 19.01.2015 she was at her mother's house the Opposite-Party did not come to know the whereabouts of her and also the newly born baby. All the expenses of delivery were incurred by the mother of the petitioner. The petitioner is unable to maintain herself and also her minor daughter. The Opposite Party is earning 25,000/- rupees per month from the work as a stand Kirani at the private Bus Stand, Dumka and also by selling the lottery ticket. In view of the above, the maintenance claimed for herself and her minor daughter.
4. On behalf of Opposite Party giving the show-cause reply filed the written statement in which he denied all the allegation made in the maintenance application by the petitioner and contended that all the allegations are wholely malicious, frivolous and misconceived. The marriage of the Opposite Party with the 2 petitioner was solemnized on 10.03.2014. From the very inception of marriage, the behaviour of petitioner towards him and his parents was humiliating and the petitioner also avoided the opposite party to live with him and also to cohabit with him. The petitioner also became pregnant. The Opposite-Party took utmost care and caution during that period to provide her medial aid and diet as well. The petitioner without any intimation to the Opp. Party used to go to her mother's house at Shreerampara,Dumka which caused mental agony to the Opposite Party. Against this misconduct the Panchayati was also held on 14.09.2014 but the same ended with no result. The arrogant behaviour of the petitioner compelled the respondent to divorce her. Therefore, respondent according to Muslim rites and customs in presence of the villagers gave Talak to petitioner on 02.12.2014 at 10:00 a.m. and written Talaknama was also sent to her by the registered post on 03.12.2014. However, she adopted tricky efforts and instituted a false and frivolous complaint against the Opposite Party in Mahila Thana Dumka. The Opp. Party also came to know that Fakhrun Nisha also got married with Md. Jawed S/O Md. Rafique of Rampurhat, P.S. Rampurhat Dist. Birbhum (W.B.) on 27.04.2015 under the Muslim custom and rites. This marriage was performed at the house of her brother Md. Azad at Srirampara Dumka. The petitioner is not entitled to maintenance after the divorce since she has remarried with Md. Jawed. So far as the birth of the child is concerned, the Opposite Party is not in 3 a position to admit or deny the same. At the time of pregnancy, she was residing with the Opp. Party at his house which she wanted to abort. The petitioner is a grown up lady having all sort of skill and experience and has income more than 15,000/- the opposite party is not working as a stand kirani in private Bus Stand nor is selling the lottery ticket rather he is an hawker in the private Bus stand associated with Sheopuri counter Dumka. The work of a hawker is only to make call to invite the attention of passenger in regard to availability of the particular Bus of particular route and nothing else for the same he is paid 5 rupees per Bus. As such he hardly earns 75 to 100 per day by which he is maintaining his mother and sister and himself also.
5. On behalf of petitioner in oral evidence examined P.W.1 Md. Azad, P.W.2 Fakrun Nisha, P.W.3 Mahfuj Alam and P.W.4 Md. Noushad Alam and in documentary evidence filed Ext.1 signature of Md. Akbar on list of articles dated 11.3.2014, Ext. 1/1 signature of Md. Israfil on list of articles dated 11.3.2014, Ext.1/2 signature of Fakrun Nisha on Nikahnama, Ext.1/3 signature of Md. Anwar on Nikahnama, Ext.1/4 signature of Md. Akbar on Nikahnama, Ext.1/5 signature of Md. Azad on Nikahnama, Ext.2 C/C of F.I.R. of Mahila Thana P.S. Case No. 7/2014, Ext.3( with objection) Endorsement of Roshan Ali on petition for Panchayati, Ext. 3/a (with objection) signature of Mahfooj Alam on petition for panchayat.
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6. On behalf of O.P. in oral evidence examined R.W.1 Md. Dawat, R.W.2 Md. Abbas, R.W.3 Md. Tahir, R.W.4 Arun Singh, R.W.5 Md. Israfil and R.W.6 Md. Anwar and in documentary evidence filed Ext.A signature of Md. Dabar Alam, Ext.B Nikah Nama dated 27.04.2015, Ext.C Panch Nama, Ext.D Written Talak Nama, Ext.E registered Postal receipt, Ext. E/1 Acknowledgement given by Post Master.
7. The learned Principal Judge, Family Court, Dumka has passed the impugned Judgment whereby the application for maintenance of the petitioner and her minor daughter was dismissed.
8. Aggrieved from the impugned Judgment, the instant Cr. Revision has been directed on behalf of the petitioner on the ground that the impugned Judgment passed by the learned court- below is based on wrong appreciation of the evidence the learned Principal Judge, Family Court has not given any finding on the point of the maintenance of the minor daughter. There is no cogent evidence in regard the Talak and second marriage of the petitioner. As such the impugned order is based on the perverse finding and same needs to be set aside by allowing this Cr. Revision of petitioner.
9. I have heard the learned Counsel of petitioner-revisionist and on behalf of the State learned A.P.P.
10. No one appeared on behalf of respondent. 5
11. For disposal of this Cr. Revision following points of determination are being framed.
i. Whether the respondent has given Talak to his wife-revisionist herein Fakhrun Nisha and thereafter the revisionist Fakhrun Nisha solemnized marriage with another person if so its effect.
ii. Whether petitioner no.2-Silpy Parvin is the legitimate or illegitimate daughter of Opposite Party-respondent if so is she entitled to any amount of maintenance.
12. Admittedly Fakhrun Nisha was got married with Md. Anwar @ Bhutka on 10.3.2014 at Indira Nagar, Jaruwadih according to Muslim rites and ritual.
I. Point of determination-
13. This plea is being raised on behalf of respondent Md. Anwar that the petitioner used to humiliate to him and his parents for no reason and she used to go to her mother's house without any intimation to him or his family member whereby he was agonized and he gave Talak to the petitioner according to Muslim rites and ritual by reciting Talak, Talak, Talak thrice on 02.12.2014 at 10 a.m. and written Talaknama was also sent to her for intimation on 03.12.2014 through the registered post. It is also further alleged by the respondent that the petitioner also got remarried with one Md. Jawed son of Md. Rafique of Rampurhat, District- Birbhum (W.B.) on 27.04.2015.
13.1 The burden of proof to prove the Talak and the remarriage of the revisionist-petitioner with another person lies upon the respondent Md. Anwar.
6 13.2 The petitioner and all her witnesses who were adduced in support of her maintenance petition have stated that the respondent Md. Anwar used to make demand of Rs. 1,00,000/- and 2 Bhari gold and showing the inability to pay the same she was tortured and ousted from the matrimonial house. The petitioner and all witnesses denied the Talaknama and remarriage with Jawed.
13.3 On behalf of respondent Md. Anwar to prove the Talak and remarriage of petitioner Fakhrun Nisha with Jawed in oral evidence examined R.W.1 Md. Dawat, R.W.2 Md. Abbas, R.W.3 Md. Tahir, R.W.4 Arun Singh, R.W.5 Md. Israfil and R.W.6 Md. Anwar himself.
13.4 D.W.1 Md. Dawat in his Examination-in-chief says first Fakhrun Nisha was married with Anwar. She was divorced in the year 2014. The Talaknama was prepared. The Talaknama is being filed which bears his signature as a witness marked Ext.A. In cross-examination this witness says it is wrong to say that Fakhrun Nisha was not married with Md. Jawed and he being the friend of Md. Anwar is giving false evidence. 13.5 R.W.2 Md. Abbas in his Examination-in-chief says he knows Fakhrun Nisha, her brother Md. Azad is his friend. Presently Fakhrun Nisha has been residing at her in-laws house at Rampurhat with her husband Md. Jawed. In cross- examination this witness says name of the husband of Fakhrun 7 Nisha is Md. Jawed. He identifies him. He was present in Nikah of Fakhrun Nisha with Jawed.
13.6 R.W.3 Md. Tahir in his Examination-in-chief says he is also called by the name Babul Khan. The name of husband of Fakhrun Nisha is Md. Jawed with whom she married in April 2015. The Nikahnama was prepared. Kaji of Nikahnama was Md. Ayum. On the Nikahnama there were signature of Fakhrun Nisha, Md. Jawed and also the signature of wakil Neyamuddin and as a witness signature of the brother of Fakhrun Nisha namely Md. Azad and Md. Jahid were on the same. This Nikahnama was prepared in his presence. In cross-examination this witness says it is wrong to say no Nikahnama was written. It is also wrong to say that on the Nikahnama Ext.B the signature of all the persons are forged.
13.7 R.W.5 Md. Israfil in his Examination-in-chief says Fakhrun Nisha was married with Md. Jawed on 27.04.2015. Nikahnama was prepared which bears signature of Fakhrun Nisha and Md. Jawed. Her brother Md. Azad and Md. Tahir were the witness of the same it also bears signature of Wakil and also signature of Kaji who prepared the Nikahnama i.e. Ext.B. Before Nikahnama of Fakhrun Nisha with Jawed, Md. Anwar had divorced her in the year 2014. In cross-examination this witness says as per Muslim customs after lapse of three months 13 days from divorce or if the wife is pregnant the Talak can be given. 8 13.8 R.W.7 Md. Anwar in his Examination-in-chief says the petitioner was his wife. After marriage they resided in Indira Nagar, Jaruwadih. Her conduct to him was not good. The petitioner did not want to keep the child in her womb. She used to leave the matrimonial house without his permission. On account of her conduct a Panchayat was also held with no result and she left the matrimonial house along with all stridhan. Thereafter he divorced his wife on 02.12.2014. Thereafter a case was filed against him in Mahila Aayog. She also got married on 27.04.2015 with Md. Jawed of Rampurhat. In cross-examination this witness says that he has given his wife Talak by reciting thrice Talak. He had not asked anyone in regard to the same. It is wrong to say that the copy of the Talaknama which was sent to the petitioner does not bear his signature. The Talaknama which he has filed is Ext.D it bears his signature and also signature of the witness Md. Nisar, Md. Dawar, Md. Razaul and others. He identifies his signature and the witnesses as well.
14. From the evidence on record, it is found that the respondent Md. Anwar had divorced his wife on 02.12.2014. It is proved from the evidence of respondent witnesses. Moreover, the Talaknama is also admitted to the petitioner wherein this suggestion is given that the Talaknama which was sent to the petitioner does not bear his signature. The Talaknama Ext.D is on record. From the very perusal of the same, it is found it bears signature of Md. Anwar and the 9 witnesses Md. Razaul, Md. Israfil, Md. Akhtar, Md. Aftab and Md. Dawar Alam. As such the Talaknama of petitioner with the respondent is proved.
14.1 So far as the Nikahnama of the petitioner with Md. Jawed after the Talak is concerned, the same as per evidence of R.W.7, Fakhrun Nisha remarried with Md. Jawed of Rampurhat on 27.04.2015. the Nikahnama is also adduced on record which is Ext.B. This Nikahnama of Fakhrun Nisha with Md. Jawed is also proved by the witness Md. Dawat. R.W.2 Md. Abbas has stated that Fakhrun Nisha remarried with Md. Jawed and she resides with Md. Jawed at her in-laws house at Rampurhat. R.W.3 Md. Tahir has stated that the Nikahnama of Fakhrun Nisha with Md. Jawed was prepared in his presence. He identifies the signature thereon of Fakhrun Nisha, Md. Jawed. Signature of wakil and kaji and the witness Md. Azad and Md. Tahid as well.
15. R.W.5 Md. Israfil also proves the Nikahnama Ext.B. Therefore, from the oral and documentary evidence, the remarriage of Fakhrun Nisha with Md. Jawed is also proved. The finding recorded by the learned Principal Judge, Family Court in regard to Talak of Fakhrun Nisha by Md. Anwar and thereafter her remarriage with Md. Jawed is not found perverse, same is based on proper appreciation of the oral and documentary evidence on record. In consequence thereof the petitioner Fakhrun Nisha does not come within the periphery of the 10 definition of wife as shown in Section 125 (1) Explanation (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
Point of Determination II:
16. The petitioner Fakhrun Nisha has claimed the maintenance in her Maintenace Petition under Section 125 of Cr.P.C. for herself and her minor daughter.
16.1 The paternity of the petitioner No.2 minor daughter Silpy Parvin is not specifically denied by the respondent Md. Anwar. Even in evidence he has nowhere denied that he is not the father of petitioner No.2 Silpy Parvin. He in his testimony has also stated that she was pregnant at his house and his wife Fakhrun Nisha did not want the child and wanted abortion, same was also opposed by him.
16.2 Further from the very pleadings of the parties, it is evident that Fakhrun Nisha was first married with Md. Anwar on 10.03.2014 and she was ousted from the matrimonial house when she was pregnant of eight months. On 19.01.2015 this baby girl was born in St. Urshila Health Centre, Bakshi Bandh Road, Dumka. The burden of proof to prove the paternity of the child also lies upon the petitioner. The petitioner and her all the witnesses have deposed that the baby girl was born on 19.01.2015 while she was at her mother's house. Respondent- Md. Anwar in his written statement has stated that she left the matrimonial house on 14.09.2014 and thereafter he 11 divorced her on 02.12.2014. R.W.6 Md. Anwar admits in his cross-examination when the petitioner left the matrimonial house, she was pregnant for 5 or 6 months and at that time he had given Talak to her. As such the pregnancy of the petitioner is admitted when she left the matrimonial house and at that time she was 5 or 6 months pregnant and on 14.09.2014 she left the matrimonial house thereafter the baby girl was born in January, 2015 of which paternity is also presumed in view of Section 112 of the Indian Evidence Act also. From the overall evidence on record, it is found that petitioner No.2 the baby girl is the daughter of respondent-Md. Anwar. 16.3 In view of Section 125 (1) (b) father is responsible to maintain his legitimate or illegitimate minor children. The father is under obligation to maintain the minor child even if he is a labourer and he is to pay the amount of maintenance for the minor daughter so that she may reside on the same life and status as she would have lived with her father. The petitioner No.2 baby girl at the time of moving the petition was 03 months old in the year 2015. As such the respondent Md. Anwar is responsible to maintain his minor daughter. He cannot escape from his responsibility and liability.
16.4 So far as the quantum of the amount of maintenance for the minor child Silpy Parvin is concerned, admittedly the respondent Md. Anwar has paid not a single penny for her maintenance and so far as his income is concerned, though the 12 petitioner and her witnesses have deposed that he is earning 25,000/- per month yet from the evidence adduced on behalf of the respondent and as per admission of respondent he is earning 75 to 100 rupee per day. So far as the liability of the respondent is concerned though he is saying he is maintaining his mother but it came in evidence that the mother is getting family pension after the death of her husband. As per admission of the respondent his income was 3000 rupees per month in the year 2015.
16.5 However, the monthly income of Respondent is assessed Rs. 5,000/- in view of Minimum Wages Act who is admittedly a hawker (skilled labourer). Therefore, it would be justified to direct the respondent to pay the amount of Rupees 2500/- per month for the maintenance of petitioner No.2-Silpy Parvin from the date of application. This finding is recorded by this Court reason being the learned Principal Judge, Family Court has given no finding in regard to the maintenance to the minor daughter Silpy Parvin which has been totally ignored by the learned trial court.
17. In view of the above, this Cr. Revision deserves to be partly allowed.
18. The impugned Judgment passed by the learned Principal Judge, Family Court is set aside to the extent of not allowing any amount of maintenance for the minor daughter of petitioner- Fakhrun Nisha.
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19. The Respondent is directed to pay Rs.2500/- per month on 10th date of each month and pay the arrears from the date of maintenance application up-to date of this Judgment within three months.
(Subhash Chand, J.) Jharkhand High Court, Ranchi Dated the 11.07.2024 P.K.S./A.F.R. 14