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2010 DIGILAW 113 (JHR)

Zohra Khatoon v. Jamil Akhtar

2010-01-21

D.K.SINHA

body2010
JUDGMENT (1) THIS Cr. Revision is directed against the order dated 30th July, 2008 passed in Maintenance Case No. 128 of 2003 by which the Principal Judge, Family Court, Ranchi dismissed the proceeding initiated at the instance of the petitioner under Section 125 of the Code of Criminal Procedure by which the petitioner had claimed her monthly maintenance from the opposite-party-Jamil Akhtar. (2) THE petitioner had initiated a proceeding under Section 125 of the Code of Criminal Procedure against the Opposite Party stating, inter alia, that she was married to him on 5/5/1992 according to Muslim Customary Law and thereafter she went to her matrimonial home where two sons Khalid Akhtar and Muzahid Akhtar were born to her out of their wedlock. It was alleged that after some time the husband Opposite Party started demanding dowry, ill-treated and perpetrated torture to her in various ways. She further alleged that the Opposite Party sold a land which actually belonged to the petitioner and misappropriated its sale proceeds which caused agony, however, she made all efforts to resume good relation but of no avail and the husband-opposite party continued ill-treating her. Ultimately, she was assaulted and the opposite party drove her out on 26-6-2002 from her matrimonial home after retaining her jewelleries and other articles presented to her on the eve of her marriage. THE petitioner alleged that the husband Opposite Party developed intimate relationship with another girl working in his office and for such reason he created such a situation compelling her to settle at her parental home. She was illiterate lady, unable either to maintain herself or her minor children, whereas Opposite Party was an employee of Central Institute of Psychiatric, Kanke drawing salary of Rs. 10,000.00 per month, quite solvent to maintain the petitioner and, therefore, she demanded a composite sum of Rs. 5,000.00 from her husband-Opposite Party for main- tenance of herself and two minor children. On service of show-cause notice, the Opposite Party appeared and explained in the causes shown that the petitioner was already divorced by him so the application under Section 125 of the Code of Criminal Procedure brought about by her for monthly maintenance was not maintainable. 5,000.00 from her husband-Opposite Party for main- tenance of herself and two minor children. On service of show-cause notice, the Opposite Party appeared and explained in the causes shown that the petitioner was already divorced by him so the application under Section 125 of the Code of Criminal Procedure brought about by her for monthly maintenance was not maintainable. The Principal Judge, Family Court, Ranchi by the order dated 14-9-2004 dismissed the proceeding initiated by the petitioner, however, with the liberty to invoke the jurisdiction of the appropriate Court under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. (3) AGAINST the said order, the petitioner preferred a Criminal Revision No. 1065 of 2004 and this Court by the order dated 20-9-2006 remanded the matter back to the Court of Principal Judge, Family Court, Ranchi with reference to the question raised therein and to analyze as to whether the petitioner was actually divorced by the Opposite Party and whether the petitioner was entitled for maintenance under the provision of Section 125 of the Code of Criminal Procedure and this Court directed the Principal Judge to expedite and dispose of the matter as expeditiously as possible. Pursuant to such direction, the Principal Judge disposed of the petition filed on behalf of the petitioner with the observation in the said proceeding that the petitioner was entitled to get maintenance even after the period of "Iddat" but under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 and that she was not entitled to get maintenance under Section 125 of the Code of Criminal Procedure and dismissed her petition. (4) LEARNED Counsel appearing on behalf of the petitioner assailed the impugned order by submitting that the learned Principal Judge, Family Court erred by relying upon the decision of Iqbal Bano's case and the case of Denial Latifi and another v. Union of India ( AIR 2007 SC 2215 ) wherein the Apex Court observed that the divorced wife was not entitled to get maintenance from the husband except for the period of "Iddat" and that for returning of her "Dain Mehr" given to her at the time of marriage or before the marriage, she could agitate her grievance under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 but the said propositions were not applicable in the instant case the learned Counsel added, as the factum of divorce between the petitioner and the Opposite Party could not be proved by the husband-Opposite Party in the proceeding under Section 125 of the Code of Criminal Procedure, as such the said Act viz. Muslim Women (Protection of Rights on Divorce) Act, 1986 was not applicable in the instant case and the learned Principal Judge grossly erred by dismissing the petition. While remanding the matter back to the Principal Judge, Family Court, this Court had observed in Cr. Revision No. 1065 of 2004 on 20-9-2006. "The order impugned by the trial Court dismissing the application as not maintainable on the ground of divorce could not be sustainable for the reason that the Magistrate has to conduct enquiry by letting the two parties to produce evidence and on the basis of evidence let in, subject to cross-examination, to analyze such evidence and then to come to the conclusion whether she is entitled to maintenance or not The argument that is submitted by the Counsel for the Opp. Party that the petitioner has only to approach the appropriate forum under the Muslim Protection Act may not be available now because the trial Court can consider it only on the basis of the evidence let in by the parties. In the circumstances, the order impugned is unsustainable in law and is set aside. The matter is remanded to the trial Court to conduct enquiry with reference to the questions raised before this Court and then to come to the conclusion. In the circumstances, the order impugned is unsustainable in law and is set aside. The matter is remanded to the trial Court to conduct enquiry with reference to the questions raised before this Court and then to come to the conclusion. Since the maintenance application has been filed in the year 2003, the trial Court is directed to dispose the application as expeditiously as possible." (5) THE learned Counsel for the petitioner further explained that pursuant to such observation of this Court the petitioner though examined 5 witnesses in the proceeding, but none of them admitted the plea of the opposite party that he had actually divorced the petitioner and that communication to such effect of pronouncement of Talaq was made to the petitioner by any prevalent mode and the receipt thereof was brought on the record during proceeding by him. THErefore, it could not be established that the Opposite Party had actually given "Talaq" to the petitioner at any point of time and the same was communicated to her. THE learned Counsel strongly urged that the dismissal of the petition preferred by the petitioner under Section 125 of the Code of Criminal Procedure by the learned Principal Judge, Family Court was totally non est in the eyes of law. Even P.W. 3 Md. Hadish Ansari who was a Member of Pundag Anjuman Committee consistently deposed that the Committee had not received any registered letter from the Opposite Party communicating pronouncement of Talaq and that while the Opposite Party was giving his statement at the earlier occasion before the Committee, he did not disclose on 18-1-2004 that he had already divorced the petitioner. Under such situation, the factum of divorce could not be proved and, therefore, the finding of the Principal Judge is fit to be set aside, the learned Counsel asserted. (6) THE Counsel further added that the learned Principal Judge, Family Court failed to take into consideration that the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 was not relevant in the present case as the factum of divorce could not be proved hence the proceeding under Section 125 of the Code of Criminal Procedure for maintenance was essentially and legally maintainable. In Iqbal Bano v. State of U. P. and Ann, reported in 2007 (4) Eastern Cr. In Iqbal Bano v. State of U. P. and Ann, reported in 2007 (4) Eastern Cr. Cases 162 : ( AIR 2007 SC 2215 ), the Apex Court observed, The view expressed by the first revisional Court that no Muslim Woman can maintain petition under Section 125, Cr.P.C. is clearly unsustainable. The Act only applies to divorced women and not to a woman who is not divorced. The conclusions that in view of the statement in the written statement about alleged divorce after 30 years of marriage by utterance of the words "Talaq" "Talaq" "Talaq" three times is sufficient in law is not sustainable. This Court in Shamim Ara v. State of U. P. and another, 2002 (7) SCC 518 : ( AIR 2002 SC 3551 ) observed : 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 11-7-1987. 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 5-12-1990. 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 effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on the wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed in some previous judicial proceedings not inter parties, containing a self-serving statement of respondent No. 2 could not have been read in evidence as relevant and of any value." (7) IN Daniel Latifi and another v. Union of INdia, reported in 2001 (7) SCC 746, a Constitution Bench of the Supreme Court of INdia observed, "A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word "provision" indicates that something is provided in advance for meeting some needs. IN other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression "within" should be read as "during" or "for" and this cannot be done because words cannot be construed contrary to their meaning as the word "within" would mean "on or before", "not beyond" and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. It would extend to the whole life of the divorced wife unless she gets married for a second time. The important section in the Act is Section 3 which provides that a divorced woman Is entitled to obtain from her former husband "maintenance" "provision" and "mehr" and to recover from his possession her wedding presents and dowry and authorizes the Magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband." (8) FINALLY, the Supreme Court of India in Iqbal Bano's case (supra) held, "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." On the other hand, learned Counsel appearing on behalf of the Opposite Party strongly contended that the Opposite Party very fairly proved the factum of divorce as against the petitioner Zohra Khatoon by communicating her through registered letter which could be evident from the evidence adduced on his behalf and that the learned Principal Judge, Family Court relying upon such evidence rightly held that in the instant case of divorce, the petition under Section 125 of the Code of Criminal Procedure seeking maintenance was not maintainable and it was dismissed. (9) HAVING regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find from the perusal of the impugned order dated 30th July, 2003 that the learned Principal Judge had formulated the points for consideration and determination and the point No. 2 was,- "Whether Opposite Party pronounced divorce and after divorce the petitioner can claim maintenance amount under the provisions of Section 125 of the Code of Criminal Procedure or she is to take recourse under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 ?" (10) WHILE discussing the said issue the learned Principal Judge observed and decided in the following manner,- "That copy of the writing as secondary evidence of Jamil Akhtar has been marked as Exhibit-B under Section 14 of the Family Court Act and legal notice along with which copy of the said Talakanama is attached marked as Exhibit-A. In Exhibit-A there is also description of pronouncing Talaque by Md. Jamil Akhtar, opposite party, to the petitioner. That the other witnesses of the opposite party deposed in their evidence that opposite party divorced his wife by writing on 8-10-2002 and the same fact has been denied by the petitioner and her witnesses. Witness on behalf of the petitioner stating that during their Panchayati opposite party not informed that he divorced his wife through writing. Witness No. 4 of the petitioner Alam Ansari, deposing in para-15 that he cannot say whether Jamil Akhtar told regarding the Talaque before Panches or not. That from the discussions made hereinbefore I find and hold that opposite party pronounces divorce by writing and the same is effective from the date of its writing i.e. on 8-10-2002." The learned Principal Judge, Family Court, Ranchi while deciding the issue No. 2 as to whether Opposite Party pronounced divorce and after divorce, petitioner could claim maintenance amount under the provision of Section 125 of the Code of Criminal Procedure or she should take recourse under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 relied upon the pleadings of the parties. The specific case of the petitioner was that no Talaque was pronounced by the Opposite Party at any point of time either in her presence or any such communication was made to her by any mode, whereas the Opposite Party pleaded before the Principal Judge that he pronounced a written divorce on 8-10-2002 and sent the same to the petitioner through registered post, a copy of which was sent to the Secretary of Anjuman Muslemin on 10-10-2002 and that after receiving the communication of Talaq the petitioner filed several cases against the Opposite Party but two of the cases were quashed by this Court. (11) IT is evidently clear from the perusal of the observation made by the learned Principal Judge, Family Court referred to hereinbefore that the only materials for coming to his conclusion that Talaq was effected by the husband-opposite party No. 2 were the copy of the writing of Jamil Akhtar which was exhibited and marked Ext. B under Section 14 of the Family Court Act without formal proof and being the secondary evidence and another was the legal notice attached with the said copy of the Talaqnama (Ext. B) and marked Exhibit-A, in my view, such documents which have been denied by the petitioner to have been received cannot be held to be a proper communication of 'Talaq' under any provision of law including the personal law. The petitioner has clearly stated that any pronouncement of Talaq by the husband-opposite party No. 2 was never communicated to her at any point of time and no receipt or acknowledgement could be produced on behalf of the Opposite Party to buttress the claim that such communication was acknowledged by the petitioner so as to constitute a valid Talaq though a Talaq even by pronouncement without a reasonable cause has consistently been deprecated. Admittedly a "Panchayati" was held for resolution of confusion and the dispute between the parties much after 8-10-2002 wherein the stand of the petitioner was that the Opposite Party had never communicated 'Talaq' either by registered mail or by any other mode. P.W. 4 Alam Ansari produced and examined on behalf of the petitioner clearly testified that he could not say as to whether Jamil Akhtar had stated regarding Talaq before the Punches or not in the said meeting. P.W. 4 Alam Ansari produced and examined on behalf of the petitioner clearly testified that he could not say as to whether Jamil Akhtar had stated regarding Talaq before the Punches or not in the said meeting. IT would be relevant to mention with reference to para 12 of the Revision Petition wherein the petitioner stated that P.W. 3 Md. Hadish Ansari was the member of Pundag Anjuman Committee who explained before the Principal Judge that the Committee had not received any communication of divorce as against the petitioner by way of registered letter from the Opposite Party and that the Opposite Party while appearing before the Committee on 18-1-2004 did not disclose about the Talaq pronounced by him and, therefore, in my view, the learned Principal Judge, Family Court, Ranchi grossly erred while deciding this issue in affirmative without appreciating the evidence on the factum of Talaq and without cogent reasoning. The materials referred to hereinbefore, in my view, were not sufficient to come to the conclusion that there was valid Talaq against the petitioner and, therefore, the finding of the Principal Judge observing that the Opposite Party pronounced divorce by writing and the same was effective from the date of its writing i.e. on 8-10-2002 cannot be sustained under the law, accordingly, such finding is set aside as the Opposite Party failed to establish a valid Talaq against the petitioner-wife. (12) NOW the question arises as to whether in the given facts and circumstances a proceeding under Section 125 of the Code of Criminal Procedure as brought about by the wife-petitioner is maintainable? The Constitution Bench of the Supreme Court of India in Daniel Latifi and another v. Union of India, reported in (2001) 7 SCC 746 held that a divorced woman is entitled to a reasonable and fair provision for maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 but in the instant case it has been held that the Opposite Party failed to establish that divorce was validly effected against the petitioner and under such situation Daniel Latifi's case is not relevant. But in the instant case as the opposite party failed to discharge the onus that a valid 'Talaq' was effected by him and that 'Talaq' between the party could not be established, I find that the proposition of law as propounded in Iqbal Bano's case by the Supreme Court of India, reported in 2007 (4) Eastern Criminal Cases 162 : ( AIR 2007 SC 2215 ) is relevant wherein a proceeding initiated under Section 125 Code of Criminal Procedure by the Muslim wife who was not divorced found to be maintainable and at the cost of repetition I venture to quote, "The view expressed by the first revisional Court that no Muslim Woman can maintain petition under Section 125, Cr.P.C. is clearly unsustainable. The Act only applies to divorced women and not to a woman who is not divorced. The conclusions that in view of the statement in the written statement about alleged divorce after 30 years of marriage by utterance of the words "Talaq" "Talaq" "Talaq" three times is sufficient in law is not sustainable." The Muslim Women (Protection of Rights on Divorce) Act, 1986 was relevant and applicable only for a divorced woman and not to a woman who was not divorced. It was propounded in the said decision that a mere plea taken in the written statement of a divorce having been pronounced some time in the past cannot by itself be treated as effectuating Talaq on the date of delivery of the copy of the written statement to the wife. The Opposite Party ought to have adduced evidence and proved the pronouncement of Talaq on such and such date and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. In the instant case, the Opposite Party failed to establish that a valid Talaq was effected and, therefore, it shall be held beyond shadow of doubt that the petitioner was not a divorced lady rather she was driven out with the child and she was entitled for maintenance in a proceeding under Section 125 of the Code of Criminal Procedure. In the instant case, the Opposite Party failed to establish that a valid Talaq was effected and, therefore, it shall be held beyond shadow of doubt that the petitioner was not a divorced lady rather she was driven out with the child and she was entitled for maintenance in a proceeding under Section 125 of the Code of Criminal Procedure. To sum up, it is well established by proposition that a divorced lady is also entitled for maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 whereas a deserted muslim wife is entitled for maintenance in a proceeding under Section 125 of the Code of Criminal Procedure. The learned Counsel appearing on behalf of the Opposite Party failed to convince this Court contrary to the settled principle of law referred to and discussed hereinbefore. In the facts and circumstances, the order impugned is unsustainable under the law and accordingly it is set aside and the Principal Judge, Family Court, Ranchi is directed to pass appropriate order in accordance with law on the petition of the petitioner initiating a proceeding under Section 125 of the Code of Criminal Procedure within a reasonable period. Order accordingly.