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2011 DIGILAW 475 (GAU)

Md. Atar Rahman v. Mustt. Sahajun Begum

2011-06-02

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. The opposite party herein made an application, under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, in the Court of the learned Chief Judicial Magistrate, Morigaon, Assam, seeking an order directing the present-Petitioner to pay Mahar of a sum of Rs. 25,101/- (rupees twenty five thousand one hundred and one) only, and another sum of Rs. 3,000/- (rupees three thousand) only, for maintenance during the period of Iddat. The said application gave rise to MR Case No. 61/2002, the opposite party's case being, in brief, thus: Her marriage was solemnized with the present Petitioner according to the Muslim Law and that the Mahar, settled for the marriage, was a sum of Rs. 25,101/-. Following her marriage, she stayed at the house of the present Petitioner. During the first three months of her stay at the house of the present Petitioner after her marriage, the brothers and sisters of the present Petitioner used to torture her both mentally and physically by raising demand of money and, one day, an attempt was made even to set her on fire. On receiving information that the Petitioner herein tortured and even tried to kill the opposite party by setting her on fire, her brother failed a criminal case at Khetri Police Station. However, at the intervention of well-wishers, the matter was amicably settled between the present Petitioner and the opposite party herein and the present Petitioner kept her (i.e., the opposite party herein) at a rented house. But, one day, the Petitioner, under the influence of liquor, beat her mercilessly and drove her out of the house. Having no alternative, she (i.e., the opposite party herein) came back to her brother's house and started living there. One 02.04.2002, while the opposite party herein was returning to her matrimonial house with her brother, they happened to meet the present Petitioner in front of his house and an altercation took place between the present Petitioner and the brother of the opposite party herein, the present Petitioner assaulted her brother and, when she went to rescue her brother, the present Petitioner, feeling aggrieved, divorced her by pronouncing talaq thrice. 2. 2. The present Petitioner resisted the application, whereby the opposite party had sought for direction to be given to the present Petitioner to pay to her the said sum of Mahar and also maintenance for the period of Iddat. While admitting that the opposite party herein was his legally wedded wife and that he had to shift to a rented house with the opposite party herein, the present Petitioner contended, in his written statement, that while living at the rented house, the opposite party herein was, one day, detected stealing vegetables at the homestead of the landlord and, on such detection being made, she left the said rented house, where she had been living with the present Petitioner. It was also contended, in the written statement, that the Petitioner, thereafter, went, on several occasions, to bring her back, but the opposite party did not agree to come back. The Petitioner also claims, in his written statement, that Mahar, which had been fixed at the time of marriage, was a sum of Rs. 5,101/- and not Rs. 25,101/-. In his written statement, the Petitioner, nowhere, denied that he had not dissolved his marriage with the opposite party by pronouncing talaq. 3. It is in the circumstances, as indicated above, the evidence, adduced by the party, and was recorded. As there was no denial by the present Petitioner, in the written statement, of the allegations, made by his wife, that she has been divorced by pronouncing 'talaq' and, upon also finding from the evidence, adduced by the parties concerned, that the Mahar amount was Rs. 25,101/- and not Rs. 5,101/-, as contended by the present Petitioner, the learned Chief Judicial Magistrate passed an order, on 07.10.2002, directing the present Petitioner to pay to the opposite party herein a sum Rs. 25,101/- as Mahar and, Rs. 3,000/- as maintenance for the period of Iddat. By order, dated 07.10.2002, aforementioned, the Petitioner was further directed to pay another sum of Rs. 2,000/- as the costs of the proceeding. 4. Aggrieved by the direction, so given, the Petitioner filed a revision before the learned Sessions Judge, Morigaon, which gave rise to CM Application No. 36/2002. 3,000/- as maintenance for the period of Iddat. By order, dated 07.10.2002, aforementioned, the Petitioner was further directed to pay another sum of Rs. 2,000/- as the costs of the proceeding. 4. Aggrieved by the direction, so given, the Petitioner filed a revision before the learned Sessions Judge, Morigaon, which gave rise to CM Application No. 36/2002. Having taken note of the fact that the second party (i.e. the present Petitioner) had not disputed the allegations of the first party (i.e., the opposite party herein) in the written statement, that she had been divorced by pronouncing talaq, the learned Sessions Judge refused to attribute any importance to the statement, which had been made, in the revision petition, by the present Petitioner, claiming that he had not divorced the opposite party and, having also taken note of the evidence on record, the learned Sessions Judge found that the opposite party had been able to prove that her marriage had been dissolved by pronouncing 'talaq', the Mahar was fixed at Rs. 25,101/- and not Rs. 5,101/-, and that the present Petitioner was, therefore, liable to pay to her an amount of Rs. 25,101/- and also maintenance of Rs. 3,500/- and, on these grounds, the revision petition, filed by the present Petitioner, was dismissed by the learned Sessions Judge, Morigaon. It is against this order of the learned Sessions Judge, Morigaon, dismissing the revision, that the present application under Section 482 CrPC, has been made. 5. I have heard Mr. A. Sharif, learned Counsel for the Petitioner, and Mr. R. Sharma, learned Counsel for the opposite party. 6. In view of the fact that it was specifically alleged by the opposite party herein, in her application, made under Section 3(2) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, that her marriage with the present Petitioner had been dissolved by pronouncing talaq thrice, and that this assertion of the opposite party remained wholly undisputed and unchallenged in the present Petitioner's written statement, the learned Courts below were obliged to proceed on the premises that the present Petitioner was husband of the opposite party, but the present Petitioner had dissolved his marriage with the opposite party. The only question, which had really remained open for decision, was whether the Mahar amount was Rs. 25,101/-, or Rs. 5,101/-? 7. The only question, which had really remained open for decision, was whether the Mahar amount was Rs. 25,101/-, or Rs. 5,101/-? 7. From a close examination of the evidence adduced by the parties concerned, it appears that not only the evidence of the opposite party, but also of her witnesses is to the effect that the Mahar amount was Rs. 25,101/-. The learned Courts below have marshaled the evidence on record and come to a finding that the opposite party's assertion, that the Mahar amount was Rs. 25,101/-, is correct. 8. Having considered the submissions, made on behalf of the parties concerned and, on a close scrutiny of the evidence on record vis--vis the findings of the learned Courts below, this Court does not find that the findings, which have been reached by the learned Chief Judicial Magistrate, and upheld by the Revisional Court, was without evidence or wholly against the weight of the evidence on record. 9. Situated thus, it is clear that the orders, impugned in this revision petition, do not call for any interference in exercise of this Court's inherent power under Section 482 of the Code of Criminal Procedure. This revision, therefore, fails and the same shall accordingly stand dismissed with Cost of Rs. 1,000/-. 10. With the above observations and directions, this Criminal Revision stands disposed of. 11. Send back the LCR.