KHADIJABIBI UMAR v. HUSEN YUSUF UMAR aliya and ANR
1992-12-22
SHARAD D.DAVE
body1992
DigiLaw.ai
DAVE, J. ( 1 ) ). This Criminal Revision Application has been directed against the revisional orders pronounced by the learned Addl. Sessions Judge, panchmahal at Godhra, in Criminal Revision Application No. 24 of 1984, reversing the orders pronounced by the learned J. M. F. C. , Kalol dated 2 2/12/1983, awarding the maintenance to the petitioner-Wife at the rate of Rs. 75-00 per month. ( 2 ) ). The petitioner-Wife Khadijabibi had approached the Court of the learned j. M. F. C. , Kalol by filing the Criminal Misc. Application No. 52 of 1982, against the husband, Husen Yusuf Umar Aliya for the maintenance for herself and her minor daughter. She says that, her marriage with the opponent-Husband was solemnised according to Muslim Personal Law, and that when she was in the family-way she was driven out of the matrimonial home by the opponent- husband and thereafter while she was at her maternal home the petitioner no, 2 daughter Afsana was born to her. According to her, when Afsana was aged about 3 years a better understanding had prevailed as a result of which, she had reverted to the matrimonial house and a brief co-habitation between them had resulted into yet another conception, but when she was in the family-way by about 3 to 4 months, she was once again driven out of the matrimonial home. According to her, she was under the impression that her husband has divorced her on 5/04/1981. Supporting her claim regarding the quantum of maintenance, she has averred that the husband was working as a mason and also as a contractor and used to earn an amount of Rs. 1000. 00to Rs. 1200. 00 per month. It is on this basis that she had prayed for the maintenance at the rate of Rs. 250. 00 for herself and at the rate of Rs. 75. 00for daughter Afsana, per month. The said case of the petitioner- wife and the minor daughter Afsana came to be challenged by the opponent- husband by filing the written statement at Exh. 9, inter alia denying all the allegations of the petitioner-Wife, and further contending that he has never divorced the petitioner-Wife and in fact no divorce had taken place on 5/04/1981 as alleged by the petitioner-Wife.
9, inter alia denying all the allegations of the petitioner-Wife, and further contending that he has never divorced the petitioner-Wife and in fact no divorce had taken place on 5/04/1981 as alleged by the petitioner-Wife. On the appreciation of the evidence on record, the learned trial Magistrate had come to the conclusion that the petitioner-Wife was able to establish her case that the opponent-Husband has failed and neglected to maintain her and that, she was entitled to stay separate and claim the maintenance for herself and the minor daughter. Taking into consideration the evidence regarding the income of the opponent-Husband, the learned trial Magistrate has awarded the maintenance at the rate of Rs. 75. 00 to the wife and at the rate of rs. 50/- to the minor daughter per month by the orders dated 22-12- 1983. ( 3 ) ). The original opponent-Husband had carried the matter in revison before the Sessions Court, Panchmahal at Godhra and the Criminal Revision application No. 24 of 1984 came to be decided and disposed of by the learned Addl. Sessions Judge by the orders dated 26-8-1985. The learned addl. Sessions Judge had taken the view that, there was absolutely no evidence to warrant a conclusion of any ill-treatment or cruelty at the hands of her husband and that, the wife who was staying with her husband had left the matrimonial home only on account of her "supposed divorce". In view of these findings, which appear ex-fade erroneous and. bereft of any evidence on record, the learned Add]. Sessions Judge has allowed the revision application in part and order of maintenance for the applicant- wife at the rate of Rs. 75. 00 per month came to be quashed and set aside. Any how, the maintenance orders in respect of the minor daughter afsana were protected. The unfortunate wife has been compelled to approach this Court firstly because of the fact that the Matrimonial and Maintenance legislations do not and can never provide a straight jacket formula to reckon a case of cruelty and secondly because of the dogmatic and illusory concepts of cruelty generated and nourished by our male-dominated society. ( 4 ) ). Mr.
The unfortunate wife has been compelled to approach this Court firstly because of the fact that the Matrimonial and Maintenance legislations do not and can never provide a straight jacket formula to reckon a case of cruelty and secondly because of the dogmatic and illusory concepts of cruelty generated and nourished by our male-dominated society. ( 4 ) ). Mr. J. C. Sheth, the learned Advocate who appears on behalf of the petitioners has urged that the evidence on record is so clear to show that the wife was being subjected to mental and physical cruelty, that the learned Revisional Judge had no scope for any interference. Mr. Sheth therefore has urged that the present revision application requires to be allowed and after setting aside the revisional orders, the original orders of maintenance require to be restored. The said contentions raised by the learned Advocate for the petitioners is duly supported by the learned A. P. P. Mr. D. N. Patel, who appears on behalf of the respondent No. 2-the State. Mr. Patel has also, while endorsing the views expressed by Mr. Sheth has urged that, there is clear evidence of mental and physical cruelty and that, therefore, the learned Addl. Sessions Judge was not at all justified in coming to the conclusion that the wife had left the matrimonial home only because of her supposed divorce. The respondent No. 1 though duly served, is not present and therefore there are no submissions on his behalf. ( 5 ) ). The learned trial Magistrate had taken the view that. the petitioner- wife was able to establish her case and that, the evidence on record clearly showed that the opponent-Husband had failed and neglected to maintain her. The evidence brought in regarding the income of the husband was also considered, The orders of maintenance pronounced by the learned trial Magistrate appear to be well reasoned and flawless. It requires to be incidentally noticed that, though the wife had approached the Court with a case that probably she has been divorced, the husband has denied the allegation of the divorce coming from the wife in no uncertain terms and has combated the case of the petitioner-Wife on this count. ( 6 ) ). The learned Addl.
It requires to be incidentally noticed that, though the wife had approached the Court with a case that probably she has been divorced, the husband has denied the allegation of the divorce coming from the wife in no uncertain terms and has combated the case of the petitioner-Wife on this count. ( 6 ) ). The learned Addl. Sessions Judge has summed up the situation atparagraph 17 of the judgment by saying thus : "therefore, the very basis of this, to stay separate and claim maintenance is not proved in this case. There is no evidence of any ill-treatment or cruelty. In fact, she was staying with her husband and left the matrimonial home only on account of her supposed divorce. " (Emphasis supplied) ( 7 ) ). The above said observations made by the learned Addl. Sessions judge would go to show that, according to him, there was absolutely no evidence of any ill-treatment or cruelty and that the wife had left the matrimonial house on the suspicion of supposed divorce. It is impossible to comprehend, that a woman having a daughter aged about four years and again being in a family-way by about four months would suddenly leave the matrimonial house on account of her supposed divorce. The conclusion reached by the learned Addl. Sessions Judge is, speaking in a most charitable fashion, wholly unjustifiable and unsustainable. ( 8 ) ). The petitioner-wife has clearly testified that just after the marriage when she was in the family-way she was driven out by the husband and later on the petitioner No. 2 Afsana was born and she had returned to the matrimonial home after 3 to 4 years. If there was no ill-treatment or cruelty on the part of the husband, she could not have been driven out of the matrimonial home when she was in the family-way. Moreover, if that were to be the position she would not have languished at her house after the delivery till Afsana was aged about 3 to 4 years. Moreover again she would not have left the matrimonial house when she was in the familyway on the second occasion. Moreover, during the cross-examination the petitioner-Wife has stated in unequivocal words that the opponent-Husband used to allege that he was not the father of daughter Afsana and the second child in the embryo.
Moreover again she would not have left the matrimonial house when she was in the familyway on the second occasion. Moreover, during the cross-examination the petitioner-Wife has stated in unequivocal words that the opponent-Husband used to allege that he was not the father of daughter Afsana and the second child in the embryo. There is no reason to disbelieve the above said evidence tendered by the petitioner-Wife and if her say is to be accepted the question is as to whether, there can be a better case of mental and physical cruelty to be meted out at the hands of the husband to the wife. To disown the paternity of a daughter aged about four years and of the embryo of about 3 to 4 months would be the greatest comprehendable dishonour to the wife and would definitely amount to a great mental cruelty leading to untold suffering which would work havoc on the mental and physical frame of the wife. This inhuman charge on the chastity of the wife would constitute a classic example of cruelty. A better case of cruelty both mental and physical simply appears to be unforseeable. ( 9 ) ). Cruelty, both mental and physical assumes different shapes and facets, making it impossible even for the cruelest of the minds to define it or to provide a ready weight measure or length furnishing a Litmus Test. Cruelty can and in fact has many manifestations, varying from violence to a murmer in the ear of the wife which would virtually kill her OB the spot. The conduct, behaviour or even an attitude of the hnsband towards the wife, in some cases may and do amount to cruelty towards the wife, though the society in which they co-habit may not be able to gather even the slightest impression thereof. The Society, neighbours and relations generally notice the outrageous behaviour of the husbands. But the inner story of a matrimonial household remains unrevealed to the outsiders. Adopting the age-old notion that cruelty should have an open manifestation in form of violence or outrage in form of violence or outrage could be nothing but to protect the male chauvinism, granting the husbands unbarricaded liberty to violate against the dignity and the honour of their wives.
Adopting the age-old notion that cruelty should have an open manifestation in form of violence or outrage in form of violence or outrage could be nothing but to protect the male chauvinism, granting the husbands unbarricaded liberty to violate against the dignity and the honour of their wives. Expecting that the case of cruelty should be established by the wife only by proving violence towards her, would simply be one more added form of cruelty, namely, judicial Cruelty, killing the house-killed wife, once again in the thresholds of the Courts. Let the Courts do not do that. ( 10 ) ). The Supreme Court has rightly shown a red signal on the crash - barrier in Shobha Rani v. Madhuakar Reddy, AIR 1988 SC 121 , by pointing out that the word "cruelty" has not been defined and could not have been defined but it has been used in relation to human conduct or human behaviour. It is the concuct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. . . . . . . . . . . . . . . . . . There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degree from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. " ( 11 ) ). Coming to the facts of the case on hand, the husband has disowned the paternity of a daughter. Having turned the expecting mother, out of the house the husband prefers to stay with her again. The cohabitation results into a second pregnancy and the husband proclaims i am riot a father, neither of the daughter born nor of the chlild yet to be born. the proclamation appears to be glaringly false. If the daughter was not his, why the resumption of a renewed cohabitation ? And why only after the second conception ? The questions fail to find answers.
the proclamation appears to be glaringly false. If the daughter was not his, why the resumption of a renewed cohabitation ? And why only after the second conception ? The questions fail to find answers. But the answer from the Court must be that such false and baseless allegation amounts to nothing less than cruelty which kills the matrimony, the honour, prestige and the dignity of the wife. ( 12 ) ). Before reaching to the final conclusion, it requires to be noticed that, as the husband himself has denied the case of alleged divorce and as the Courts below have not been satisfied that there was a divorce between the parties and that, the petitioner was a divorced woman, the provisions contained under Sec. 4 of the Muslim Women (Protection of rights on Divorce) Act, 1986, have no application. ( 13 ) ). The conclusion, therefore, would be that the present Criminal Revision application succeeds, and the same requires to be allowed. Accordingly, the same is hereby allowed and the revisional orders are hereby set aside and quashed, while the order of the trial Court granting the maintenance to the petitioner-wife are hereby restored. Now the petitioner-wife shall be entitled to the maintenance at the rate of Rs. 75-00 per month from the date of the application till realisation. .