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2006 DIGILAW 697 (UTT)

MUSTAK AHMAD v. STATE OF U. P.

2006-12-05

RAJESH TANDON

body2006
JUDGMENT 1. Heard Sri T.A. Khan, counsel for the revisionsit, Mr. Lalit Sharma, counsel for the opposite parties no.2 and 3 and A.G.A. for the State. 2. By the present criminal revision, revisionist has prayed for quashing of the order passed by the Family Judge dated 18th January, 2000 in Criminal Case No. 78/98 U/s 125 of the Code of Criminal Procedure. 3. Briefly stated, the application under Section 125 of the Code of Criminal Procedure was filed by Smt. Jaibunisha against the revisionist claiming a sum of Rs. 500/- for herself and Rs. 500/- for the child, who was aged about 12 years at the time of filing of the said application as maintenance. 4. According to the application filed on behalf of the Opposite Parties no. 2 and 3, Smt. Jaibunisha got married with the revisionist-Mustak Ahmad according to the muslim rights thirteen years back from the date of filing of the application under Section 125 of the Code of Criminal Procedure and both the parties have lived together for some time and two children were born out of their wedlock; son aged about 12 years and the daughter aged about 8 years. 5. According to the opposite party, she was subjected to harassment on account of the dowry having not been given at the time of marriage and as such, she was ousted from the matrimonial house. In the application filed under Section 125 of the Code of Criminal Procedure, it has been stated that the revisionist is earning a sum of Rs. 15,000/- per month and as such the maintenance of a sum of Rs. 500/- towards wife and Rs. 500/- towards child will be of some help of them. A written statement has been filed on behalf of the revisionist and in the written statement, it has been stated that vide registered notice dated 27.08.1998, he has given divorce by pronouncing it three times and the said pronouncement has been sent through registry. 6. The revisionist has further stated that he has always cordial relations with her and as such there is no occasion to pay the maintenance allowance to the opposite parties. 7. Further he has deposited a sum of Rs. 15,000/- Parties were examined. On behalf of respondents P.W. 1 Jaibunisha and P.W.2 Abdul Kadir were examined. On behalf of the revisionist, Mustak was examined. 8. 7. Further he has deposited a sum of Rs. 15,000/- Parties were examined. On behalf of respondents P.W. 1 Jaibunisha and P.W.2 Abdul Kadir were examined. On behalf of the revisionist, Mustak was examined. 8. P.W.1 Smt. Jaibunisha in her statement has deposed that she was subjected to dowry and two drafts for a sum of Rs. 20,000/- & 20,000/- were given to the applicant. However, she was ousted from the matrimonial house. 9. After considering the entire evidence on the record, the Family Court Judge has allowed the application directing the revisionist to pay a sum of Rs. 500/- for wife and Rs. 500 for child up to attaining the age of 18 years as maintenance. 10. Sri T.A. Khan, counsel for the revisionist has submitted that once the statement was made that he has divorced in accordance with the muslim rites, it was not possible for the opposite parties to demand the maintenance from the revisionist. 11. A finding has been recorded by the Family Judge that on 20th May, 1998 oral divorce was given, which was not accepted by the opposite parties and further the amount of Mehar to the extent of Rs. 10,000/- was also not paid to the opposite party no.2 and as such divorce cannot be said to have been operated in absence of the Mehar and further in absence of the acceptance of the Talak. 12. So far as the amount of maintenance is concerned, the child has already grown up and therefore, only wife has to be paid to the extent of Rs. 500/- per month. 13. Sri Lalit Sharma counsel for the respondents no. 2 and 3 has submitted that no divorce had taken place between the parties inasmuch as neither there was any communication, which would have been accepted and further the amount of the Mehar has still not been paid. 14. The sole argument is that the question of divorce arises only when the Mehar amount has been paid and before that any pronouncement was wholly inoperative inasmuch as it has no existence in the eyes of law. 15. An amendment application has been filed stating therein that the mutual divorce has already taken place. 16. Sri Lalit Sharma has disputed the said admission on the ground that she has not signed the said document. 15. An amendment application has been filed stating therein that the mutual divorce has already taken place. 16. Sri Lalit Sharma has disputed the said admission on the ground that she has not signed the said document. Since the question of providing of the document and the fact whether any mutual divorce had taken place or not the matter requires reconsideration before the Family Court. 17. However, the revisionist has been directed to pay a sum of Rs. 500/- to the wife, which he shall continue to pay and the matter is remitted to the Family Court, which shall decide it afresh within a period of two months from the date of production of the certified copy of this order in the light of the observations made above. The revisionist shall be liable to pay the maintenance allowance from the date of filing of the application upto date after passing the order by the Family Court. However, he shall pay the monthly maintenance from the month of January, 2006 regularly. 18. Present criminal revision is allowed subject to the condition that the applicant shall be paying the amount of maintenance regularly till the disposal of the matter before the Family Judge along with the arrears. 19. Subject to the aforesaid, revision is sent back to the trial Court for recording the findings in accordance with the observations made above.