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2008 DIGILAW 2242 (MAD)

F. Sheik Hussain v. Faridha Banu

2008-07-04

K.MOHAN RAM

body2008
Judgment The above Criminal Original Petition has been filed against the order of the Principal District and Sessions Judge, Salem, rendered in C.R.P.No.31 of 2007. 2. The short facts that are necessary for the disposal of the above Criminal Original Petition are set-out below:- The respondent herein who is the second wife of the petitioner filed a petition under Section 125 of the Criminal Procedure Code seeking maintenance at the rate of Rs.3,000/- per month alleging that the petitioner had deserted the respondent without any valid reason and neglected to maintain her though he was possessed of sufficient means. The said petition was contested by the petitioner herein contending that he had divorced the respondent / wife by pronouncing ‘Thalaq’ on 15.09.2003 and pronounced ‘Muthalaq’ in front of the witnesses for the same and he sent a notice dated 30.09.2003 informing the same to her and she received the notice and sent a reply; since a valid divorce has been granted by the husband-petitioner herein the marriage between the petitioner and the respondent has been dissolved and hence the respondent is not entitled for any maintenance except for the ‘Iddat’ period maintenance as per the Muslim Women (Protection of Rights on Divorce) Act 1986 (hereinafter referred to as “the Act”); the petition filed under Section 125 Cr.P.C. is not maintainable. 3. The trial court on a consideration of the evidence on record held that the divorce pleaded by the respondent herein has not been proved by acceptable evidence and after considering the income of the petitioner ordered the payment of a sum of Rs.1,250/- per month as maintenance. Being aggrieved by that the petitioner herein had filed a revision petition in C.R.P.No.31 of 2007 before the Additional District Judge (Fast Track Court No.I), Salem, and the revisional Court on a consideration of the materials on record concurred with the findings of the trial court and rejected the revision. Being aggrieved by that the petitioner is before this Court by invoking Section 482 of the Criminal Procedure Code. 4. Being aggrieved by that the petitioner is before this Court by invoking Section 482 of the Criminal Procedure Code. 4. Learned counsel for the petitioner made the following submissions:- .(i) the Courts below failed to properly consider the evidence let in by the petitioner herein regarding the pronouncement of ‘Muthalaq’ by the petitioner in front of the witnesses and failed to see that the same was also duly informed to the respondent-wife and the maintenance amount for ‘Iddat’ period was also sent to the respondent. .(ii) as per the provisions of the Act the divorced woman is not entitled to maintenance from the husband but they are entitled to maintenance only for the three Iddat periods, which the petitioner has sent to the respondent along with the ‘Muthalaq’ notice. (iii) the courts below failed to see that the respondent alone deserted the petitioner without any valid reasons and she is not entitled to any maintenance from the petitioner. .(iv) the Courts below ought to have relied on the evidence of R.W.2 who is the Kazi for three districts and who had spoken to about the fact that the petitioner had lawfully divorced the respondent; .(v) in any event the award of maintenance of Rs.1,250/- per month is highly excessive. .(vi) the petition filed under Section 125 of the Criminal Procedure Code instead of under the provisions of the Act is not maintainable and the same should have been dismissed by the Courts below. Except the aforesaid submissions no other submissions have been made. 5. I have carefully considered the said submissions made by the learned counsel. 6. At the outset it has to be pointed out that admittedly the petitioner being aggrieved by the order of maintenance passed by the trial court has preferred a revision before the Sessions Court and the same has been dismissed and as such the above petition is in the nature of a second revision which as laid down in the decision reported in (1995) 5 SCC 751 (Deepti v. Akhil Rai) is not maintainable. In the said decision the Apex Court has observed as under:- "The High Court also should have taken care to verify the record before accepting the concession made by the learned Government Advocate. In the said decision the Apex Court has observed as under:- "The High Court also should have taken care to verify the record before accepting the concession made by the learned Government Advocate. It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. As we find that the order passed by the High Court is not legal and just it will have to be set aside". 7. Further even on merits the above Criminal Original Petition has to be dismissed for more than one reason. The contention of the learned for the petitioner that a divorced Muslim woman is not entitled to claim maintenance as per the provisions contained in the Act and such Muslim women are entitled to maintenance for only three ‘Iddat’ periods is directly against the law laid down by the Constitutional Bench of the Apex Court in the case of Danial Latifi and Anr. v. Union of India reported in (2001 (7) SCC 746). The very same contention put forth by the learned counsel for the petitioner came up for consideration before the Constitution Bench and the Constitution Bench after analysing the provisions of this Act summed up the law as under:- “36. While upholding the validity of the Act, we may sum up our conclusions: .(1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3 (i) (a) of the Act. .(2) Liability of the Muslim husband to his divorced wife arising under Section 3(i) (a) of the Act to pay maintenance is not confined to the iddat period.” The above said decision has been followed in the case of Sabra Shamim v. Maqsood Ansari reported in ( 2004 (9) SCC 616 ) as well as in the decision reported in 2007 (4) CTC 90 (Iqbal Bano v. State of U.P. And Anr.). 8. 8. The other contention that the petition filed by the respondent under Section 125 of the Criminal Procedure Code ought not to have been entertained by the Courts below also came up for consideration in the decision reported in 2007 (4) CTC 90 (referred to supra) and in the said decision in paragraph 9 it has been held as follows:- “9. Proceedings under Section 125, Cr.P.C. are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to him to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125, Cr.P.C. and claims made under the Act are tried by the same Court.” Therefore the said contention of the petitioner is also liable to be rejected. 9. The next contention of the learned counsel for the petitioner that the Courts below has not properly considered the evidence on record and has erroneously recorded a finding that the ‘Muthalaq” pronounced by the petitioner has not been established and the divorce has not been proved is concerned, it has to be pointed out that a perusal of the judgment of the Courts below clearly shows that the entire evidence has been considered by the Courts below and a concurrent finding has been recorded holding that the divorce pleaded by the petitioner has not been proved and such a concurrent finding of fact cannot be interfered with by this Court under Section 482 of the Criminal Procedure Code by re-appreciating the evidence. The scope of Section 482 of the Cr.P.C. is very very limited and only pure questions of law can be gone into and not the factual findings and as such this Court is not inclined to re-appreciate the evidence and come to a different conclusion as sought to be done by the petitioner. 10. Similarly the contention of the learned counsel for the petitioner that the Courts below has not considered the evidence of R.W.2-Kazi is also not correct. A perusal of the judgment shows that the evidence of R.W.2 has been considered properly and for reasons recorded only the evidence of R.W.2 has not been accepted. 11. In these days of spiraling prices the sum of Rs.1,250/- ordered as maintenance per month cannot be considered to be excessive. A perusal of the judgment shows that the evidence of R.W.2 has been considered properly and for reasons recorded only the evidence of R.W.2 has not been accepted. 11. In these days of spiraling prices the sum of Rs.1,250/- ordered as maintenance per month cannot be considered to be excessive. It is also pertinent to point out that after the trial court pronounced the order in M.C.No.14 of 2003 on 21.03.2007 the petitioner had sent a notice dated 09.04.2007 intimating the respondent that he had pronounced ‘Muthalaq’ in the presence of witnesses on 07.04.2007. Based on the said notice the learned counsel sought to contend that since the respondent had been divorced by pronouncement of ‘Muthalaq’ on 07.04.2007 and the same had been communicated to her by notice dated 09.04.2007 the respondent is not entitled to claim maintenance. The said contention of the learned counsel for the petitioner is fallacious. The very fact that the petitioner had chosen to pronounce ‘Muthalaq’ on 07.04.2007 pre-supposes the existence of a valid marriage between the petitioner and the respondent and the same falsifies the plea of the petitioner that already he had divorced the respondent and it was the main defence of the petitioner before the Courts below. Even this subsequent divorce pleaded by the petitioner has to be established by adducing evidence and even assuming without admitting that with effect from 07.04.2007 the marriage between the petitioner and the respondent stood dissolved that will not affect the right of the respondent to claim maintenance from the petitioner for the reasons stated supra. 12. For the aforesaid reasons the above Criminal Original Petition fails and the same is dismissed.