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Karnataka High Court · body

2009 DIGILAW 850 (KAR)

Hussain v. Nagina

2009-11-12

A.N.VENUGOPALA GOWDA

body2009
Judgment :- Venugopala Gowda, J The Petitioner, who is the husband and father respectively of the Respondents, has opposed an application filed by the respondents under Section 125 of Cr.P.C, claiming maintenance from the Petitioner and the orders passed thereon by the Trial Court and the Revisional Court. For the sake of convenience, the parties in this Petition will be referred according to their rank in the Trial Court. 2. The Petitioners filed an application under Section 125 Cr.P.C to order payment of monthly maintenance at Rs.3,000/-each, by the Respondent. The marriage between the first Petitioner and the Respondent was solemnized on 05.05.1986, as per the customs which prevailed in their community. Out of the wedlock, they have one son and two daughters. Second Petitioner is in the custody of the first Petitioner. It was stated in the application that, the Respondent ill-treated the first Petitioner for silly reasons and behaved inhumanly. It is alleged that, demand made to bring cash and gold from the first Petitioner’s parents, having not been complied with, she was driven out of her matrimonial house and hence, both the Petitioners are staying away from the Respondent, who has neglected them, without any justifiable reasons and though has sufficient means, has refused to maintain them. It was stated that, the Respondent is working as a Sub Divisional Engineer in Telecom Department and is drawing salary of Rs.18,000/-per month. Though he has an obligation to provide maintenance, the same was not provided. 3. The Respondent has filed objections. The relationship between Petitioners and Respondent was not disputed. However, the application was opposed stating that, it was on account of attitude of the first Petitioner in not co-operating with him to lead marital life, they are living separately. It was contended that, he divorced first Petitioner in accordance with Muslim Law by giving ‘Talaq’ and also sent ‘Talaqnama/Talaq Notice’. As such, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1996, (for short the ‘Act’), the application is not maintainable and he is not liable to pay maintenance to the first Petitioner. It was stated that, even otherwise, first Petitioner is having sufficient income to maintain herself and also the 2nd Petitioner. As such, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1996, (for short the ‘Act’), the application is not maintainable and he is not liable to pay maintenance to the first Petitioner. It was stated that, even otherwise, first Petitioner is having sufficient income to maintain herself and also the 2nd Petitioner. He further stated that, he has married subsequent to the divorce with first Petitioner and got other children and as such, it is his duty to maintain second wife and children. 4. The first Petitioner got herself examined as PW-1. She examined PWs 2 and 3. Ex.P-1 Nikhanama and Ex.P-2 salary certificate of the Respondent, were marked. Respondent deposed as RW-1. After appreciation of the entire evidence, Learned Magistrate has come to the conclusion that, the factum of divorce of ‘Talaq’ by the husband with wife is not at proved and as such, the provisions of ‘the Act’ are not attracted. It was held that, the marriage is still subsisting and hence the first Petitioner is required to be considered as legally wedded wife and 2nd Petitioner as the daughter respectively of the Respondent. The Trial Court held that there is enough material to show that the Respondent has neglected to look after the Petitioners and as such they re entitled for an order for payment of maintenance. Considering the salary income of the Respondent and his admission that he is having income of Rs.32,000/-per month and finding possession of sufficient means to pay the maintenance, the application was allowed and payment of maintenance to each Petitioners at the rate of Rs.3,000/-per month was ordered. 5. Aggrieved, the Respondent approached the Sessions Court by filing a Criminal Revision Petition. The Learned Sessions Judge, on reconsideration of the entire material, did not find merit in the revision petition and hence, dismissed the same. This petition is directed against the said orders. 6. Sri. 5. Aggrieved, the Respondent approached the Sessions Court by filing a Criminal Revision Petition. The Learned Sessions Judge, on reconsideration of the entire material, did not find merit in the revision petition and hence, dismissed the same. This petition is directed against the said orders. 6. Sri. A.A. Pathan, Learned Advocate appearing for the husband, reiterating the contentions urged in the Courts below, contended that, in view of the provisions of the Act, the Respondents, especially, the wife who has been divorced by pronouncement of ‘Talaq’, which was followed by issue of notice of Talaknama and also the payment of ‘mahr’ amount, could not invoke the jurisdiction of Criminal Court u/S 125 of Cr.P.C for claiming maintenance, in view of the personal law applicable to the parties viz., ‘the Act’. In this regard, Learned Counsel placed reliance on a decision of Patna High Court in the case of BIBI SHAHNAZ ALIAS MUNNI vs. STATE OF BIHAR AND ANOTHER 1998 Crl.L.J. 4702 and contended that, the orders passed by the Courts below are illegal. 7. Sri. Ahamad Ali Rahiman Shah. Learned Advocate appearing for the wife and child, on the other hand, by relying upon the decision in the case ZULEKHA BEGUM ALIAS RAHAMATHUNNISA BEGUM vs. ABDUL RAHEEM 2000 (2) Kar.L.J 70 , and in the case of SHAMIM ARA VS. STATE OF U.P AND ANOTHER AIR 2002 SC 3551 , contended that, there is no pronouncement of ‘Talaq’ in accordance with law and that, the plea taken by the husband regarding pronouncement of ‘Talaq’ has not been proved and mere service of a ‘Talaq-nama’ and payment of ‘Mahr’ amount cannot operate as valid divorce. He further submitted that, both the Courts below have correctly appreciated the evidence on record and have recorded findings concurrently and hence, no case exists to the husband, to invoke the jurisdiction of this Court u/S 482 Cr.P.C. Learned Counsel, by taking me through the record, made submissions in support of findings and conclusions of the Courts below in the impugned orders. 8. 8. The Apex Court in the case of CAPTAIN RAMESH CHANDER KAUSHAL vs. VEENA KAUSHAL AND OTHERS AIR 1978 SC 1807 , has held, that the provision under Section 125 of Cr.P.C, is a measure of social justice, specially enacted to protect the women and children and it basically which falls within the constitutional sweep of Article 15(4) R/w Article 39 of the Constitution of India. 9. The provisions contained in the ‘Act’ are applicable only to divorced women and the Act is for the protection of their rights, which is clear from a reading of Sec. 3 of the Act. A reading of the provision makes it clear that, a divorced woman is prohibited from claiming maintenance after the period of ‘Iddat’. In the case of SMT. MAHABOOBBI vs. SHRI. IBRAHIMSAB ALLISAB CHANEGAN 2000 (2) KCCR 854, noticing that divorce was not proved, it was held that, without the proof of divorce, the provisions of the Act are not attracted. 10. In the case of Shamim Ara (supra), a Muslim wife filed an application for maintenance under Sec. 125 Cr.P.C. for herself and her children. The husband filed objections wherein he made certain accusations against the wife and stated that eversince the marriage, he found his wife non co-operative and having activities unbecoming of the wife and hence divorced her. Particulars of the alleged ‘Talaq’ were not pleaded nor the circumstances under which the persons, if may, in whose presence ‘Talaq’ was pronounced was stated. The husband, except examining himself, adduced no evidence in proof of ‘Talaq’ said to have been given by him. No reasons in justification of ‘Talaq’ was substantiated and no plea or proof that, any effort at reconciliation preceded the ‘Talaq’, was substantiated. In such factual background, it was held as follows: “16. We are also of the opinion that the talaq to be effective has to be pronounced. The term ‘pronounce’ means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p.1030). There is no proof of talaq having taken place on 11.07.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 05.12.1990. There is no proof of talaq having taken place on 11.07.1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 05.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The Respondent No.2 ought to have adduced evidence and proved the pronouncement of talaq on 11.07.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.” (Emphasis supplied by me) 11. In the case of Zulekha Begum (supra), a Petition for warding maintenance under Sec. 125 Cr.P.C., was contested by the Respondent. The main contention was that, he had divorced the Petitioner under Muslim Personal Law and had sent ‘Talaqnama’ and paid “Mahr’ amount and also the maintenance for ‘Iddat’ period, was accepted by holding that the divorce being complete, it was held that, the petitioner is not entitled to be maintained by the Respondent and the Petition is not maintainable. Accepting the contentions of the husband, the Petition was dismissed by the Trial Court. When the order was questioned, this Court has held as follows: “28. I am in respectful agreement with the principles laid down in the aforesaid judgments of the Kerala, Calcutta, Madras and the Division Bench of the Gauhati High Court and take the view that the divorce must be preceded among muslims by an attempt of reconciliation between the husband and wife by two mediators, one chosen by the wife from her family and the other by the husband from his side. In the above view of the matter, a Mohammedan husband cannot divorce his wife at his whim or caprice, i.e., divorce must be for a reasonable cause, and it must be preceded by a pre-divorce conference to arrive at a settlement. In the above view of the matter, a Mohammedan husband cannot divorce his wife at his whim or caprice, i.e., divorce must be for a reasonable cause, and it must be preceded by a pre-divorce conference to arrive at a settlement. Even if there is any reasonable cause for the divorce, yet there must be evidence to show that there was an attempt for a settlement prior to the divorce and when there was no such attempt prior to divorce to arrive at a settlement by mediators, then there cannot be a valid divorce under Mohammedan Law. 29. In the present case it is admitted by both the Counsels for the Petitioner and the Respondent that there is no evidence on record adduced by the parties before the Court below to show that there was an attempt for a settlement between the parties prior to the divorce given by the Respondent to the Petitioner. Therefore, I hold that the talaq or divorce given by the Respondent to the Petitioner is not valid in law. 30. The contention of the Learned Counsel for the Respondent is that the application filed by the Petitioner under Sec. 125 of the Cr.P.C. before the Court below is not maintainable, since the Petitioner is a divorced woman. Since I have already held that the divorce given by the Respondent to the Petitioner is not valid in law, the judgment of this Court in the case of Rukiya, supra, is not applicable to the facts of the present case and accordingly the contention advanced on behalf of the Learned Counsel for the Respondent stands rejected.” (Emphasis supplied by me) 12. In the case of SABRA SHAMIM vs. MAQSOOD ANSARI (2004) 9 SCC 616 , the order passed by the High Court which had proceeded on premise that the Act provides a divorced wife will be entitled to maintenance till the Iddat period only and not any further and on that basis had set aside the order made by the Family Court granting maintenance was set aside by the Apex Court, noticing that the High Court had proceeded on the proposition of law which was plainly contrary to the decision in the case of DANIAL LATIFI AND ANOTHER vs. UNION OF INDIA (2001) 7 SCC 740 . Thereby, it has been held that, keeping in view the provisions contained under Section 3 (1)(a)and 4 of the Act, divorced wife is entitled to maintenance not merely till Iddat period, but for the entire life, unless she remarries. 13. Having noticed the law, it is now necessary for me to consider the material evidence produced by both the sides to substantiate their claims, to find out, whether the aforesaid findings arrived at by the Courts below, are justifiable or not. 14. It is the case of the husband/RW-1 that, he has given divorce to Petitioner No.1 as per Muslim Law customs by giving Talaq on 21.04.2001 and hence as per provisions of the Act, the application claiming maintenance is not maintainable. He has stated that on account of the ill-treatment given to him by his wife and her brothers attacking him physically, the marital life with the first Petitioner and then he decided to give divorce and accordingly he gave divorce on 21.04.2001 and to the said effect, he sent a communication to the President of ‘Farooqi Masjid’ (Pendar Masjid) situated at Bijapur Road of Athani. He has further stated that, subsequent to giving divorce, in the interest of his children, because there was no body to feed them and look after them and to look after himself, he married second wife. Respondent-husband has not produced any evidence to prove that prior to the alleged divorce by pronouncement of talaq, he made an attempt of reconciliation between himself and his wife by two mediators, one chosen by the wife from her family and the other by him from his side. There is no evidence showing a pre-divorce conference to arrive at a settlement prior to the alleged divorce. As held by the Apex Court in the case of Shamim Ara (supra), the Talaq to be effective has to be pronounced. There is also no proof of pronouncement of Talaq having taken place on 21.04.2001. The Petitioner has merely taken a plea in the written statement that Talaq was pronounced and has repeated it in his affidavit evidence, which cannot by itself be treated as effectuating Talaq. Mere sending of Talaq Nama or communication to the Masjid or payment of Mahr amount is by itself cannot be treated as ‘Talaq’ having been pronounced and taken effect. Mere sending of Talaq Nama or communication to the Masjid or payment of Mahr amount is by itself cannot be treated as ‘Talaq’ having been pronounced and taken effect. RW-1 has not examined the pre-divorce conference mediators or any other person to establish the alleged pronouncement of Talaq. He has not adduced any acceptable evidence and has not proved the pronouncement of Talaq on 21.04.2001. In the absence of proof of Talaq by producing necessary evidence, the Courts below were justified in holding that the Petitioner has failed to prove the divorce pleaded by the husband. 15. In view of the dearth of evidence on the above noted aspects of the case, even on reconsideration of the entire record, I do not find any other view, than the one taken by the Courts below, is possible. The Courts below have correctly appreciated the evidence of both parties and have held that the husband has failed to prove the plea of divorce by pronouncing Talaq, in the manner recognized in law and custom. Hence, I do not find any illegality or perversity in appreciation of the case by the Courts below. 16. In view of the above, it is clear that the marriage of the first Petitioner with the Respondent is still subsisting. Hence, the provisions of the Act, are not at all attracted. As such, taking into consideration the decisions of the Apex Court and of this Court, referred to supra, the order for payment of maintenance, passed by the Trial Court and upheld by the Revisional Court, are just and proper. In these circumstances, the decision in the case of Bibi Shahnaz @ Munni (supra) has no application. 17. In view of the evidence of PW-1 and the conduct of RW-1. the Petitioners have justifiable cause to stay away from him. There is no evidence on record to hold that the applicants have means to maintain themselves. 18. In these circumstances, the decision in the case of Bibi Shahnaz @ Munni (supra) has no application. 17. In view of the evidence of PW-1 and the conduct of RW-1. the Petitioners have justifiable cause to stay away from him. There is no evidence on record to hold that the applicants have means to maintain themselves. 18. So far as the quantum of maintenance is concerned, R.W.1 has admitted that he is employed in Telecom Department and during the year 2000, he was drawing salary of Rs.18,000/-p.m. When he was examined on 01/03/2007, he has admitted that his salary income is Rs.32,000/-p.m. Keeping in view the evidence adduced in the case and the minimum amount required for the applicants for their just survival vis-à-vis the status of respondent and the findings of fact recorded by the Courts below, no interference is warranted by this Court. 19. Respondent is having sufficient means to maintain both the applicants, who are unable to maintain themselves. Second applicant is indisputably a minor. Till she attains majority or gets married, whichever is earlier, she is entitled for payment of maintenance amount from her father. For the foregoing reasons, the petition is devoid of merit and hence stands dismissed. Ordered accordingly.