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2003 DIGILAW 513 (CAL)

SABILA KHATOON v. SATIKUL SHEIKH

2003-09-30

ARUNABHA BARUA

body2003
ARUNABHA BARUA, J. ( 1 ) THIS criminal revision arises out of an application under Article 227 of the Constitution of India and also under Section 482 of the code of Criminal Procedure,1973. ( 2 ) THE case pertains to a claim of maintenance by a muslim wife, Sabila Khatoon (the petitioner here in this revision) against her husband. Safikul Sheikh, the opposite party here. ( 3 ) THE matter stood out before the learned Judicial Magistrate, 1st Class. Kandi, Murshiclabad, when the said wife made an application under Section 125, Cr. P. C. claiming maintenance for herself from the O. P. husband. ( 4 ) BEFORE the learned Magistrate both the husband and wife adduced evidence including documentary evidence to substantiate/ negate their claims. The learned Magistrate having considered the evidence on record found in favour of the wife, Sabila Khatoon and passed an order dt. 4-10-2001, made an order of maintenance to the tune of rs. 300/- (three hundred only) per month from the opposite party-husband on and from the date of filing of the instant ease. ( 5 ) BEING aggrieved by the said decision of the learned Magistrate the husband made a revisional application being Criminal Motion no. 68 of 2001 before the learned Additional sessions Judge, Kandi, Murshidabad. By the judgment and order dated 3-6-2002 the said Additional Sessions Judge allowed the criminal motion on contest and for reasons recorded by him, in disagreement with the learned Magistrate, he set aside the order of the learned Magistrate and dismissed the wife's petition under Section 125, Cr. P. C. ( 6 ) BEING aggrieved and dissatisfied with the said judgment and order dated 3-6-2002 passed by the learned Additional Sessions judge, Kandi, the wife, Sabila Khatoon, has moved this revisional application before this court. According to the petitioner-wife here the learned Additional Sessions Judge erred in both law and fact in coming to the conclusion he did (sic) and illegally and unjustifiably denied the petitioner-wife of her maintenance to the tune of Rs. 300/- per month which was rightly awarded in her favour by the learned Magistrate through his judgment and order dt. 4-10-2001. ( 7 ) THE short point involved in this revisional application is whether the learned additional Sessions Judge was justified in refusing the maintenance to the wife under section 125, Cr. P. C. to the tune of Rs. 300/- per month which was rightly awarded in her favour by the learned Magistrate through his judgment and order dt. 4-10-2001. ( 7 ) THE short point involved in this revisional application is whether the learned additional Sessions Judge was justified in refusing the maintenance to the wife under section 125, Cr. P. C. to the tune of Rs. 300/-per month as already awarded by the learned magistrate by his order dated 4-10-2001. ( 8 ) I have carefully gone through the judgment and order passed by the Courts below that of the learned Judicial Magistrate and that of the learned Additional Sessions judge which stand assailed by the petitioner-wife. I have also considered the oral and documentary evidence adduced by both the parties. ( 9 ) THE only consideration that seems to have weighed with the learned Additional sessions Judge in denying the wife the maintenance granted by the learned Magistrate seems to be a document in the form of muktinama allegedly brought into existence on 15-9-1999, the alleged signature of the petitioner-wife by virtue of which the husband gave talak to the petitioner and the petitioner accepted the same and at that time the petitioner alleged to have received a sum of Rs, 20,000/- and other articles and ornaments including certain cash towards her other claims and then allegedly gave her signature on the said Muktinama. This' Muktinama allegedly created at the instance of the parties was proved and marked as ext. C. The main reason why the learned additional Sessions Judge came to the coriclusion he did in dismissing the wife's claim for maintenance is this as stated at page 4 of his judgment :"the total evidence of the PWs and OPWs makes it clear that at the point when the marital life of the parties was full with unhappiness they arrived at a settlement and the petitioner accepted the talak from the o. P. in presence of her father and also in presence of others. The said fact is clearly established from the Muktinama marked as ext. C. From the said Muktinama it is also established conclusively that the petitioner took Rs. 20,000/- along with her ornaments in presence of the moselish and released the o. P. In the concluding portion of such muktinama the petitioner released the O. P. from further claim and again relinquished all of her claims. C. From the said Muktinama it is also established conclusively that the petitioner took Rs. 20,000/- along with her ornaments in presence of the moselish and released the o. P. In the concluding portion of such muktinama the petitioner released the O. P. from further claim and again relinquished all of her claims. The Muktinama as has come before the Court was written and created in presence of the distinguished persons of the locality and also in presence of the Prodhan of Daspa sha Gram Panchayat. The well corroborated and testified evidence of the OPWs proves that a sum of Rs. 1,000/- out of Rs. 20,000/- as received by the petitioner was the Denmohar and remaining rs. 19. 000/- was taken as the cost of maintenance during the period of Iddat and future maintenance. Since, it has been substantiated by the document marked Ext. C hat the petitioner received a sum of ms, 20,000/- as her dower and cost of maintenance for the period of Iddat and future maintenance and since she waived all of her claims unequivocally by written document by designating her as second party there and since the total evidence of the O. Ps. unerringly shows that the amount as taken by the petitioner was for dower and cost of maintenance. 1 am of the clear view that the petitioner is not entitled to get any maintenance from the O. P. " ( 10 ) NOW, I think the learned Additional sessions Judge made an error of his judgment in denying maintenance to the aggrieved wife by placing unnecessary anci too much reliance on Ext. C. the so-called muktinama or a deed of release so-called. The learned Additional Sessions Judge in not being persuaded by the reasons afforded by the judgment of the learned Magistrate dt. 4-10-2001. to my mind erred in law. specially when it comes to awarding maintenance to a helpless wife, unable to maintain herself and taking recourse to the socialistic legislation of 125, Cr. P. C. ( 11 ) THE reasons given by the learned magistrate on this particular point of maintenance on the basis of the facts and circumstances and evidence of the case are detailed in paga 8 of the learned Magistrate's judgment as follows :". . . . . . . . . . . . FROM the contents of the said ext. . . . . . . . . . . . FROM the contents of the said ext. C it is crystal clear that the said sum of Rs. 20,000/- was paid to the petitioner on account of Denmohar and the sums paid by the father of the petitioner at the time of marriage. There is nothing in Ext. C. from which it can be inferred that any part of the said sum of Rs. 20,000/- was paid to the petitioner on account of maintenance during Iddat period or fair maintenance. Though the O. P. Ws. in their evidence have stated that the said sum of Rs. 20,000/- comprises of Denmohar, maintenance for Iddat period as well as fair maintenance but when there is documentary evidence in that regard on the record, the oral evidence in that regard cannot prevail, because of the fact that man may lie but document never does so. In view of the above position, I have no hesitation at all to hold that after the divorce the O. P. has not paid anything to the petitioner on account of her maintenance. It has also been observed in the reported case law of (2000) 1 Cal LJ 608, that the expression "during Iddat Period" should not be strictly construed only during that period but. it would be extended till a mohamedan, divorce female enters remarriage. Here it is nobody's case that the petitioner has ever entered remarriage after the said divorce. In view of the above position, the petitioner is surely entitled to get maintenance from the O. P. even after the dissolution of marriage. If that be the position of law, then in view of the admitted fact that the O. P. has not paid anything to the petitioner on account of her maintenance alter the divorce then obviously the said act on the part of the O. P. amounts to sheer neglect and refusal by him to maintain the petitioner. Accordingly, 1 am also of the considered opinion that the o. P. has actually neglected/refused to maintain the petitioner. " ( 12 ) IT looks, the learned Magistrate had made the right appreciation of evidence and rightly relied upon the case law in (2000) 1 cal LJ 608. The learned Magistrate also rightly evaluated the evidence to fix the quantum of maintenance to the tune of rs. " ( 12 ) IT looks, the learned Magistrate had made the right appreciation of evidence and rightly relied upon the case law in (2000) 1 cal LJ 608. The learned Magistrate also rightly evaluated the evidence to fix the quantum of maintenance to the tune of rs. 300/- per month for the wife to be paid by the erring husband. ( 13 ) THE point is the so-called Muktinama or a deed of release cannot be regarded as a permanent seal to freeze the wife's claim for maintenance for ever, and for that matter to seal her late for good, specially when a divorced woman not being remarried, is driven to destitution and distress. Section 125 of the Code of Criminal Procedure is a piece of socialistic legislation which provides for summary and speedy relief by way of maintenance, to save the woman from such precarious predicament. ( 14 ) THUS, in my considered view the judgment and order passed by the learned additional Sessions Judge was not in accordance with law and he was not justified in dismissing the claim of maintenance by the petitioner-wife, namely Sabila Khatoon. 14a. Accordingly, this revisional application is allowed and the judgment and order dt. 3-6-2002 passed by the learned Additional Sessions judge, Kandi. Murshidabad, in Criminal Motion No. 68 of 2001 is hereby set aside and the judgment and order passed by the learned Judicial Magistrate, Kandi. Murshidabad, dt. 4-10-2001 in Misc. Case no. 201 of 1998, T. R. No. 9 of 2000 granting maintenance to the wife Rs. 300/- per month from the O. P. Safikul Sheikh which hereby affirmed. The petitioner-wife is entitled to get the maintenance as awarded by the learned Magistrate as ordered by him together with all arrears, if any, in lump, in due process of law with utmost expedition. ( 15 ) LET a copy of this order be sent down at once to the learned Courts below. ( 16 ) URGENT Xerox certified copy of this order, if applied for, be given to the parties. Petition allowed.