A. M. Sadiq Basha v. Shamsad Begam and others — 1993 DIGILAW 135 (MAD)

Judgment : This revision filed under Secs.397 and 401 of the Code of Criminal Procedure is directed against the order passed by the learned First Additional Sessions Judge, Coimbatore made in Crl.R.P.No.55 of 1987 and Crl.R.P.No.82 of 1987, dated 13. 1988 directing the revision petitioner herein to pay a sum of Rs.175 per month to the first respondent herein from 111. 1984 by allowing the Crl.R.P.No.82 of 1987and dismissing the Crl.R.P.No.55 of 1987, preferred by the petitioner herein, canvassing the propriety and legality of the maintenance order passed by the learned Judicial First Class Magistrate, Coimbatore made in M.C.No.46 of 1984 dated 13. 1987 directing the petitioner herein to pay a sum of Rs.75 each to the respondents 2 to 4 herein per month, as maintenance as provided under Sec.125 of the Code of Criminal Procedure from the date of the petition itself. .2. The case of the respondents herein projected in M.C.No.46 of 1984 is briefly stated as follows: Both the petitioner herein and the first respondent are Muslims by religion governed by Mohammedan Law, who married in accordance with the religion and caste customs in the year 1975 in a marriage hall situated at Siriyan Church, Coimbatore town, and since then onwards, both had been living together as husband and wife, happily for a period of about five years and that since the father of the revision petitioner, died at Karamadai, just to help his mother, both the revision petitioner and the first respondent shifted their residence to Karamadai and were living in the house of the revision petitioner for a period of 8 months and then subsequently changed their abode to a house at Anna Nagar. Respondents 2 to 4 were the children born to them out of the wedlock and that on the date of filing of the petition before the trial court, namely, on 111. Respondents 2 to 4 were the children born to them out of the wedlock and that on the date of filing of the petition before the trial court, namely, on 111. 1984, the respondents 2 to 4 were studying in the school, even during the said life, it was alleged that the petitioner herein, was addicted to drinking alcohol and gambling and that in view of the said vices, he used to ill treat the first respondent, without any reason whatsoever and sometimes used to beat her and that during the said sojourn, gold jewellery to the weighment of about 25 sovereigns presented to her at the time of marriage, were taken away by the petitioner herein, and squandered and that apart, the three gold rings weighing about half sovereigns each along with a gold chain worth Rs.550and a H.M.T. watch presented by the parents of the first respondent to the revision petitioner were also sqaun-dered but added with ill treatment and cruelly perpetrated on her. While that being so on 10. 1984, the petitioner herein, left the conjugal house of the first respondent and their children respondents 2 to 4 and on 110. 1984, she was shocked to hear that the revision petitioner had contracted a second marriage with one Saidhani Begum and with whom he was living at Udumalpet and from then onwards, he had not visited the house of the respondents herein but however deserted and neglected them, by not paying a single paisa even for their maintenance. Finding it difficult to lead life at Karamadai, the respondents sought asylum in the parents house of the first respondent at Coimbatore. Since the petitioner herein was running a business by name Sathik Frame Works and getting an income of Rs.1,000 per month and then getting a daily income of Rs.10 as net profit from running a grocery shop at Karamadai, and besides, he has a house, consisting of four tenements, leased out to tenants at Kannarpalaiyam village and getting a monthly rental of Rs.80 per tenament and also a salary of Rs.400 per month being derived by him from one Venkatachalapathy Chit Funds, it was claimed that the revision petitioner has got ample means to provide maintenance and since the respondents had no means to maintain themselves, they pleaded for the direction of maintenance amount as prayed for, in the petition. .3. .3. The revision petitioner in his counter statement contended inter alia, that all the averments pertaining to the alleged ill-treatment, cruelty, beating, addiction to the liquor and gambling, were all false and denied in toto and that with regard to the means position also, his plea is one of total denial. But he contends that the allegations with regard to the presentation of the jewelleries and watch to the petitioner by the parents of the first respondent were equally false and he denies the alleged desertion by him. But it was projected on his behalf that the first respondent had deserted his conjugal home in the month of October, 1984 and that thereafter, she never returned to his conjugal company. Inspite of repeated efforts taken by him, she did not come to his house and that was the reason why, he had married one Saidhani Begum as second wife as provided by the Mohammedan Law. It was his further plea that he had performed Talak against the first respondent and thereby dissolved the marriage tie between him and the first respondent on 310. 1984, as recognised by the Mohammedan Law and that about which, he had intimated the same by means of a registered post with acknowledgment due, addressed to her, which was returned as unserved and that therefore, during the month of December, 1984, he had again sent the intimation of Talak, by certificate of posting to the first respondent which was stoutly denied by the first respondent herein. It was the further specific contention of the revision petitioner that the first respondent holds an auto-rickshaw bearing registration No. TNC.7115, being run by her and thereby she was getting a monthly income of Rs.1,000 and that therefore, the first respondent had enough means, not only to maintain herself but also the other respondents 2 to 4 and that, as such, for the above said two reasons, the revision petitioner, was not liable to pay any maintenance, as provided under Sec.125 of the Code of Criminal Procedure. It appears further, from the counter and evidence, let in on behalf of the revision petitioner herein, a suit in O.S.No.526 of 1985 on the file of District Munsif Court, Coimbatore was filed by the petitioner herein and he obtained an order restraining the first respondent herein, not to dispose of the auto rickshaw. 4. It appears further, from the counter and evidence, let in on behalf of the revision petitioner herein, a suit in O.S.No.526 of 1985 on the file of District Munsif Court, Coimbatore was filed by the petitioner herein and he obtained an order restraining the first respondent herein, not to dispose of the auto rickshaw. 4. In the light of the written pleadings taken on behalf of the respective parties, oral and documentary evidence, were recorded by the learned trial Magistrate and on consideration of the entire adduced oral and documentary evidence, the learned trial Magistrate, has found, that in view of the fact that the first respondent/wife owns an auto rickshaw and running for hire and getting income from it, in the context that no convincing evidence was let in with regard to the means position of the revision petitioner herein, it was held that he was not liable to pay any maintenance towards the first respondent/wife herein. In so far as respondents 2 to 4 are concerned, the learned Magistrate has found the petitioner herein, liable to pay maintenance at the rate of Rs.75 per mensem to each of the respondents 2 to 4 from the date of petition. Against which, the first respondent/wife preferred a revision challenging the correctness and validity of the order of the trial Magistrate before the lower appellate court, which allowed the revision preferred by the wife/first respondent herein, and dismissed the revision preferred by the husband/ petitioner herein, as stated above and against which, the present revision has been filed by the petitioner herein. 5. I have heard Mr.S.R.Sundaram, learned counsel appearing for the petitioner, who among various other grounds raised in the grounds of revision, confined his main attack against the impugned order passes by the lower appellate court on the basis, that the lower appellate court has failed to appreciate the evidence let in on behalf of the respective parties, in its proper legal perspective and if the evidence is appreciated properly, it will be clinching, that there should be no order passed against the petitioner herein, directing him to pay maintenance to all the respondents herein. Then, the learned counsel dwells his attack on the plea that during the month of October, 1984, the revision petitioner had dissolved the marriage tie with the first respondent herein by performing Talak as recognized by the Mohammedan Law and contracted a second marriage, which factum has been duly communicated by a registered post with acknowledgment due to the first respondent though was returned unserved but subsequently sent by certificate of posting to the first respondent and therefore, there exists no relationship of husband and wife, to consider the liability to pay maintenance as provided under Sec.125 of the Code of Criminal Procedure, and thirdly, the learned counsel would submit, that since the marriage tie between the petitioner herein and the first respondent had been dissolved already, and she was a divorced Muslim woman, filing a petition under Sec.125 of the Code of Criminal Procedure is not at all sustainable in the context of the various provisions made in the enactment known as The Muslim Women (Protection of Rights on Divorce) Act, 1986 and that instead of seeking remedy if any, available as provided under the above enactment, having recourse to Sec.125 of the Code of Criminal Procedure, cannot be sustained in the eye of law and that therefore, the lower appellate court has not approached the case in this angle and that therefore, the impugned order passed by the lower appellate court, is vitiate with every illegality and impropriety. 6.Per contra, Mr.Dhanasekaran, learned counsel appearing for the respondents, countered every one of the arguments advanced on behalf of the petitioner by contending, that the alleged divorce by performing Talak claimed by the petitioner herein, has not been proved nor is there any record or evidence produced to show that there was proper intimation of the said performance of Talak by the petitioner to the first respondent at any point of time and that therefore, in the context of denial, it is the revision petitioner who must prove the dissolution of the marriage tie between him and the first respondent and that inasmuch as the said aspect has not been done it was contended that it is not open for the petitioner herein to contend that the first respondent is not entitled to claim any maintenance for herself and her children as provided under Sec.125 of the Code of Criminal Procedure. Then, the learned counsel would contend that since the petition claiming maintenance itself was filed as early as 1984, before The Muslim Women (Protection of Rights on Divorce) Act, 1986, came into force, the plea that no relief can be made available to the respondents herein under Sec.125, Crl.P.C. cannot be entertained during the second revision before this Court and that no such plea had been taken either before the lower appellate court or the trial court on behalf of the petitioner herein, and lastly, it was contended by the learned counsel for the respondents, that in as much as the petitioner herein had contracted a second marriage and is leading a family life with his second wife, discarding the respondents herein without paying any maintenance amount, the lower appellate court, was perfectly right in awarding maintenance to all the respondents herein, in the context that the first respondent has no income at all, which is the only pivotal point for awarding the maintenance. 7. In the light of the above rival contentions made on behalf of the respective parties herein, the only point, that arises for consideration is whether the order of the lower appellate court in directing the revision petitioner to pay maintenance to all the respondents herein is erroneous in law and improper, liable to be set aside, if not, is the quantum of maintenance directed by the lower appellate court proper and correct? .8. As regards to the performance of marriage between the petitioner herein and the first respondent in accordance with the religious customs and the consequent happy living for a period of more than seven years as Muslim husband and wife at Coimbatore and then shifting their residential abode to Karamadai to help the bereaved mother of the petitioner herein and running the Sadhik Photo Frame Works and employed in Chit Fund and getting salary and income from them and running the grocery shop also and then shifting their residence to Annanager at Karamadai and that the respondents 2 to 4 were the children born to both the petitioner herein and the first respondent during the said sojourn, are concerned, there is no controversy or dispute among the parties herein. If one has to probe this matter on the above undisputed facts, there is no difficulty in holding that the petitioner herein is the husband and the first respondent is the wife and the respondents 2 to 4 are their legitimate children, and as such the revision petitioner is bound to live with them and maintain them out of his own income and property. Thus, the plea taken on behalf of the respondent is that he had admitted the contracting of the second marriage with one Saidhani Begum and living with her as husband and wife subsequently at Udumalpet and not visiting the respondents herein who were his wife and children. But curiously, he has taken a plea that he had divorced the first respondent on 310. 1984 by performing the Mohammedan concept of Talak and duly intimated her by sending the registered post with acknowledgment due but it was returned as unserved, followed by sending of intimation of the said performance of Talak by certificate of posting to the first respondent and that therefore, he is not liable to pay any maintenance to the first respondent herein. Thus, considering the very plea taken by the petitioner herein, it is manifestly clear, that the onus of proving that he has dissolved the marriage tie with the first respondent by performing the Talak, the mode of dissolution recognized by the Mohammedan Law, on all fours, lies on the shoulder of the petitioner herein. But it appears from the records, that he has not filed any documents to show that he has performed the Talak and thereby dissolved the marriage tie with the first respondent, nor communicated the same to the first respondent, as evident from the fact that no documents had been filed before the trial court. He has not filed the returned postal acknowledgment cover and the receipt for sending the same to the first respondent by certificate of posting. That was the reason why, the learned trial Magistrate, was not in a position to give any specific finding with regard to the divorce claimed by the revision petitioner herein. But considering admission made by the first respondent with regard to her ownership of the auto-rickshaw, the trial Magistrate was not inclined to grant maintenance to her But however, it appears the trial court has not accepted the plea of divorce by the revision petitioner herein. .9. But considering admission made by the first respondent with regard to her ownership of the auto-rickshaw, the trial Magistrate was not inclined to grant maintenance to her But however, it appears the trial court has not accepted the plea of divorce by the revision petitioner herein. .9. The lower appellate court, it is seen, while reassessing the entire evidence has given a finding that though the auto-rickshaw bearing registration No.TNC.7115 was claimed by the first respondent as that of her own, but in view of the attachment and subjected to distraint proceeding taken against the same by the financier, she was bereft of any income there and that therefore, she could not maintain by herself or her children and that in this context, the lower appeliate court has granted the maintenance at the rate or Rs.175 per month for the first respondent also with regard to the other factual aspects, namely, the liability of the revision petitioner herein, to pay maintenance to respondents 2 to 4 who are undoubtedly, the legitimate children of the revision petitioner has not taken any plea but however in the circumstances, it goes without saying that he has to pay the maintenance to respondents 2 to 4. Therefore, in the above context of failure to discharge the onus of proving the divorce claimed by him, legal marriage tie between him and the first respondent exists and continues in the very context that he has contracted a second marriage and was living with his second wife on the date of filling of the petition. With regard to the means positions, it is true that two documents Ex.P-2 and Ex.P-3 were marked and relied on behalf of the first respondent which throw light to some extent that the revision petitioner was running a photo frame works shop and he owns a house at Chikkaramapalayam village, which factum has not been denied by the revision petitioner in his counter statement and also in his evidence. It was the finding of the court below that the evidence let in on behalf of the petitioner herein was not of any use and assistance to his case. Therefore, it was the clear finding by the lower appellate court on the basis of the tendered oral and documentary evidence, that the petitioner herein, is liable to pay maintenance to all the respondents herein. Therefore, it was the clear finding by the lower appellate court on the basis of the tendered oral and documentary evidence, that the petitioner herein, is liable to pay maintenance to all the respondents herein. With regard to the above said established factual aspects, I do not come across any infirmity or laches committed by the lower appellate court, much less, nothing has been pointed out by the learned counsel appearing for the petitioner. 10. Much strain taken by the learned counsel appearing for the petitioner was only on the basis that the petition for claiming maintenance by the respondents, was not at all maintainable and cannot be sustained in the light of the provisions made in The Muslim Women (Protection of Rights on Divorce) Act 1986, and in support of which, the learned counsel has relied on the decision in Usman Khan Bahamani v. Pathimunnisa Begum, A.I.R. 1990 A.P. 225: 1990 Crl.L.J. 1364 (KB.) and Mohammed Yameed v. State of U.P., 1992 Crl.L.J. 1804:1992 All.L.J. 593: 1992A.C.R. 85: (1992)1 Crimes 1257 : (1992) 2 Recent C.R. 371, on going through the said ease laws, in the context of the enactment The Muslim Women (Protection of Rights on Divorce) Act, 1986 hereinafter called as the Act 25 of 1986. I may observe at the outset,that the said plea, is not at all available for the revision petitioner, to seek any shelter, with a view to avoid the payment of maintenance to the respondents herein for the simple reason, that this Act has been enacted by the legislature in the context that the Supreme Court held in Mohammed Ahmad Khan v. Shah Banoo Begum, 1985 Crl.L.J. 875, that payment of Mahar or dower by husband to the wife did not attract Sec.l27(3)(b) and order of maintenance under Sec.125 could not be cancelled on such payment. The Supreme Court quoting certain verses from Holy Quran and observed that there was no conflict between Sec.125, Criminal Procedure Code and Muslim Personal Law on the question of Muslim Husband’s obligation to provide maintenance for his divorced wife. Sec2(a) of the Act defines a divorced woman as follows, "divorced woman" means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim Law". Sec2(a) of the Act defines a divorced woman as follows, "divorced woman" means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim Law". Suffice for me at this juncture to proceed further in the instance case, to take note of the meaning for the definition of "divorced woman" itself in order to see whether the plea taken by the learned counsel appearing for the petitioner that in the content of the said Act, a petition claiming maintenance under Sec.125 of the Code of Criminal Procedure cannot be sustained. As I have already observed and both the courts below have rightly but concurrently held that the revision petitioner has not discharged his onus of proving that the marriage tie between him and the first respondent has been severed and that consequently, the first respondent has assumed the character of a ‘divorced woman’ as defined in Sec.2(a) of the enactment. The concurrent findings clearly go to show, that the first respondent still continues as the wife of the revision petitioner and the respondents 2 to 4 are their children and that therefore, in the contact of the revision petitioner contracting a second marriage and living with his second wife with independent income to the utter prejudice and disregard of the respondent’s family, the remedy provided under Sec.125 of the Code of Criminal Procedure, I find that there is no force in the arguments advanced by the learned counsel appearing for the petitioner. With the result, I do not propose to import the legal ratio discussed and enunciated in the above two case laws referred, which came into existence on totally distinct and different circumstances, therefore I am of the view, that the above case law relied on by the learned counsel for the petitioner, will not be of any help or assistance for him. Nextly, it is to be noticed that the very Act itself came into existence on 15. 1986 and even assuming the said act came into force but, however, it has no retrospective effect in its operation. Therefore, I am totally unable to persuade myself to countenance the legal plea advanced by the learned counsel for the petitioner. 11. Nextly, it is to be noticed that the very Act itself came into existence on 15. 1986 and even assuming the said act came into force but, however, it has no retrospective effect in its operation. Therefore, I am totally unable to persuade myself to countenance the legal plea advanced by the learned counsel for the petitioner. 11. However, with regard to the evidence available pertaining to the means position of the revision petitioner, in the context of the rise in prices of the commodities in the present day, I feel, that the ends of justice would be met, if I reduce the quantum of monthly maintenance to the first respon-dent to one of Rs.150 instead of Rs.175 and at Rs.50 to each of the respondents 2 to 4 instead of Rs.75 each payable by the revision petitioner as ordered by both courts and altogether, the petitioner will have to pay Rs.300 per month from the date of petition till today. Except the above modification, I find that there is no merit in this revision, warranting interference by this Court. 12. In the result, with the above modification in the quantum of monthly maintenance from Rs.400 (Rs.175 to the first respondent and Rs.75 each to respondents 2 to 4) to Rs.300 (Rs.150 to the first respondent and Rs.50 each to respondents 2 to 4) to be paid by the petitioner, this revision which fails shall stand dismissed accordingly.