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2000 DIGILAW 609 (CAL)

Sk. Md. Sahidullah v. Husna Banu

2000-12-05

Debiprasad Sengupta

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JUDGMENT Debi Prasad Sengupta, J. : The present revisional application is directed against an order dated 25.3.99 passed by the ld. Additional Sessions Judge, Katwa in Criminal Motion No. 2/99 thereby setting aside the order passed by the learned Sub-Divisional Judicial Magistrate, Katwa in Misc. Case No. 73 of 1995 under section 125 of the Code of Criminal Procedure. 2. Present opposite party no. 1/ wife filed an application under section 125 of the Code of Criminal Procedure before the ld. Magistrate claiming maintenance for herself and her minor child. The case of the opposite party/wife in her application under section 125 of the Code of Criminal Procedure is that she was married to the present petitioner/husband according to Muslim rites. At the time of marriage Denmohor was fixed at Rs. 30,000/-. After marriage o.p. No. 1/wife was subjected to torture and ill-treatment by her husband and other in-laws as she could not bring more money and articles from her father. On 28.2.91 the husband/petitioner assaulted the o.p./wife and drove her out from matrimonial home after taking away all her ornaments and other articles which were given to her by her father at the time of her marriage. It was further stated that the petitioner/husband married again. The o.p./wife had no independent income and as such she claimed Rs. 1500/- per month for herself and Rs. 1000/- for her child as maintenance. 3. The present petitioner being the husband appeared and contested the said proceeding by filing written objection. Specific case of the husband/petitioner, as it appears from his written objection, is that he tried his best to take back the wife/o.p. by various means. He has given the specific dates on which he went to his father-in-law's house to get the matter reconciled. He has even given the names of the respectable persons of the village who accompanied the petitioner/husband to his father-in-law's house for that purpose. But the wife/ o.p. did not return from her father's house. When all endeavours on the part of the husband/ petitioner failed, he divorced his wife. It was the further contention of the petitioner/husband that being a divorced woman the o.p./wife is not f entitled to get any maintenance. 4. The learned Magistrate by his order dated 22.9.98 refused the prayer for maintenance of the o.p./wife, but allowed the prayer for maintenance of minor son at the rate of Rs. It was the further contention of the petitioner/husband that being a divorced woman the o.p./wife is not f entitled to get any maintenance. 4. The learned Magistrate by his order dated 22.9.98 refused the prayer for maintenance of the o.p./wife, but allowed the prayer for maintenance of minor son at the rate of Rs. 400/- per month from the date of the order. 5. Challenging the said order of the learned Magistrate the o.p./wife preferred a revisional application before the learned Session Judge. The learned Additional Sessions Judge, Katwa by the impugned order dated 25.3.99 allowed the revisional application, set aside the order passed by the learned Magistrate and allowed the prayer for maintenance of the wife/o.p. and her minor child. The present petitioner/husband was directed to pay Rs. 700/- per month and Rs. 500/- for her child as maintenance. The present revisional application has been preferred against the order passed by the ld. Additional Sessions Judge. 6. Mr. Mukherjee the learned Advocate appearing for the husband/petitioner submits that before the ld. Magistrate it was established that the o.p./wife was not unable to maintain herself and she was the owner of about .82 decimal of agricultural land and her annual income from the said land was Rs.15000/- to 16000/- per year. The ld. Additional Sessions Judge should have considered that in view of the provision of section 125(1)(a) of the Code of Criminal Procedure a woman who claims maintenance must be unable to maintain herself. It is the further submission of Mr. Mukherjee that the opposite party No.1/ wife being a divorced Muslim wife is not entitled to get any maintenance. 7. The ld. Advocate appearing for the opposite party/wife submits that it was rightly hold by the ld. Additional Sessions Judge that there was no valid divorce in the eye of law inasmuch as there was neither any pre-divorce conference between the parties nor there was any attempt for reconciliation between the parties and in absence of any such evidence it cannot be said that there was any valid 'Talak'. 8. From a reading of the judgement and order passed by the learned Magistrate it appears that he refused the prayer for maintenance of the o.p./wife on the ground that the was divorced Muslim wife and there was a valid 'Talak' tendered by the present petitioner/husband, which was communicated to the o.p./wife. 8. From a reading of the judgement and order passed by the learned Magistrate it appears that he refused the prayer for maintenance of the o.p./wife on the ground that the was divorced Muslim wife and there was a valid 'Talak' tendered by the present petitioner/husband, which was communicated to the o.p./wife. The learned Magistrate was also of the view that since the wife has got sufficient landed property and she is not unable to maintain herself, she is not entitled to get any, order of maintenance. 9. I have heard the ld. Advocates of the respective parties. I have also perused the impugned orders passed by the courts below. It appears that in the written objection filed by the husband/petitioner it has been stated by him that all attempts were made for reconciliation between the parties. It has been stated that one Sk. Faruk, one Unush and one Sukur Saheb went to the house of the opposite party/wife on different occasions to get the matter compromised. But everything was in vain. But surprisingly none of these persons has been examined by the present petitioner/husband on his behalf. From a reading of the judgment of the ld. Additional Sessions Judge it appears that the Talak given by the husband was not a valid Talak. The petitioner was not informed about the said Talak and there was no pre-divorce conference before giving such Talak. As it has been held by this Court as also by other High Courts in number of decisions, some of which have been relied upon by the Additional Sessions Judge that a Mohammedan husband cannot divorce his wife at his whim or caprice, the ld. Judge was justified in holding that Talak as alleged to have been given to the opposite party/wife is not a' valid Talak. Divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference to arrive at a settlement. In the present case it could not be proved that the present petitioner/husband gave talak to his wife. In absence of such pre-divorce conference or any attempt for reconciliation between the parties, the Talak given by the husband/petitioner cannot be said to be a valid Talak. In the written objection the husband/petitioner has also stated that when all the attempts for reconciliation failed a notice was sent to the opposite party/wife through ld. In absence of such pre-divorce conference or any attempt for reconciliation between the parties, the Talak given by the husband/petitioner cannot be said to be a valid Talak. In the written objection the husband/petitioner has also stated that when all the attempts for reconciliation failed a notice was sent to the opposite party/wife through ld. Advocate of the petitioner asking her to return to her matrimonial home. But the husband/ petitioner failed to prove such contention by producing any letter of any advocate or any documents showing that such letter was communicated to the opposite party/wife. 10. I have perused the judgment of the ld. Additional Sessions Judge. He has passed the order after giving reasons and with proper application of mind and also relying upon the judgements of this court. I do not find anything wrong with the said order and in my opinion this is not a fit case for interference by this court. The ld. Additional Sessions Judge was justified in allowing the revisional application, setting aside the order passed by the ld. Magistrate and allowing the application under section 125 Cr.P.C. directing the present petitioner to pay an amount of Rs. 700/- for the petitioner and Rs. 500/- for the child per month. The present revisional application accordingly fails and the same is dismissed. Revisional application dismissed.