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2012 DIGILAW 1294 (PAT)

Husnara Begum v. State of Bihar

2012-09-12

BIRENDRA PRASAD VERMA

body2012
ORDER The order dated 4.9.2008 passed in Maintenance Case No. 125 of 2004 by the learned Principal Judge, Family Court, Katihar, is subject matter of challenge in both the above mentioned criminal revision applications. Therefore, both the applications have been heard together and are being disposed of by this common order. 2. In Cr. Revision No. 1280 of 2008, petitioner no.1 Husnara Begum (hereinafter referred to as ‘the wife’) claims to be legally wedded wife of opposite party no.2 Md. Islamuddin. Petitioner no.2 is said to be the minor son, born out of the wedlock of petitioner no.1 and the opposite party no.2. They have assailed the validity and correctness of the aforesaid impugned order dated 4.9.2008 passed in the aforesaid Maintenance Case No. 125 of 2004, on the ground that their claim for maintenance has been allowed under section 125 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) only for a limited period i.e. from 3.11.2004 to 23.8.2006. 3. Md. Islamuddin (hereinafter referred to as ‘the husband’), petitioner in Cr. Revision No. 498 of 2009 has assailed the validity and correctness of the impugned order dated 4th September, 2008 only on the question of quantum of maintenance allowed in favour of the opposite party nos. 1 and 2 of that case for a limited period. It is contended that the petitioner is working as a labourer and the quantum of maintenance fixed is excessive, therefore, this is required to be modified and reduced. 4. After having heard learned counsel appearing on behalf of the parties and on perusal of the materials available on record as also on examination of the impugned judgment and order dated 4.9.2008, this Court finds that the factum of marriage between the husband and wife having taken place on 25.7.2001, according to the Islamic rituals, is not under dispute. The issue raised on behalf of the husband that wife is leading an adulterous life has not been accepted by the learned Principal Judge, Family Court, Katihar and that allegation has been disbelieved after considering the materials/evidence produced by the parties. Similarly, the issue raised on behalf of the husband that Md. Mobarak (petitioner no.2 in Cr.Revision No. 1280 of 2008) is not his legitimate son has been answered in negative by the learned Principal Judge, Family Court, Katihar. 5. Similarly, the issue raised on behalf of the husband that Md. Mobarak (petitioner no.2 in Cr.Revision No. 1280 of 2008) is not his legitimate son has been answered in negative by the learned Principal Judge, Family Court, Katihar. 5. This Court further finds that the husband had raised a plea of divorce, which was emphatically denied on behalf of the wife. The learned Principal Judge, Family Court, Katihar, appears to have not decided that issue conclusively by asking the parties to lead evidence in support of their respective claims, and by taking into consideration the relevant provisions of law as also the judicial pronouncements made by this Court as also by the Apex Court. The learned Principal Judge, Family Court, Katihar, at one stage has come to a finding that the evidence on the question of divorce is vague and indefinite and, therefore, it cannot be said with certainty that the husband has divorced his wife. However, at subsequent stage he has accepted the plea of divorce taken by the husband only on the ground that the factum of divorce was disclosed in the show cause filed on behalf of the husband and copy was served upon the counsel of wife on 23.8.2006. Consequently, the claim of maintenance made on behalf of the wife as also the minor son has been restricted only up to 23.8.2006. 6. It has been submitted on behalf of the petitioners in Cr. Revision No. 1280 of 2008 that the issue regarding divorce has not been properly decided by the learned Principal Judge, Family Court, Katihar. It is next contended that even if the court comes to a finding that divorce had taken place between the husband and the wife, in that case also, in view of explanation (b) of Section 125( 1) Cr. P.C., the wife shall be entitled to have maintenance under the provisions of the Cr. P.C. Learned counsel has placed reliance in support of his above contention upon a recent judicial pronouncement of the Hon’ble Apex Court in the case of Shabana Bano Vs. Imran Khan, [2010] 1 S.C.C. 666 = (2010)1 S.C.C.(Cri.) 873). P.C., the wife shall be entitled to have maintenance under the provisions of the Cr. P.C. Learned counsel has placed reliance in support of his above contention upon a recent judicial pronouncement of the Hon’ble Apex Court in the case of Shabana Bano Vs. Imran Khan, [2010] 1 S.C.C. 666 = (2010)1 S.C.C.(Cri.) 873). It is further contended that even if the plea of divorce is accepted to be true and if any petition for maintenance is filed under the provisions of the Muslim Women (Protection of Right on Divorce) Act, 1986 (hereinafter referred to as ‘the Act of 1986’), then in that case also the mandate of Section 5 of the Act of 1986 is required to be followed. But, applicability of that Act will come into force only when the factum of divorce is conclusively decided on the basis of materials produced by the parties and by taking into consideration the relevant laws and customs. According to the learned counsel, in view of dispute regarding factum of divorce, the wife cannot be relegated to the provisions of the Act of 1986 for claiming maintenance against her husband. Further, the claim of maintenance of the minor son, in any condition, has to be decided under the provisions of Section 125 Cr.P.C. and not under the provisions of the Act of 1986. 7. So far the challenge made on behalf of the husband on the question of quantum of maintenance is concerned, that seems to be completely misconceived. By no standard, the quantum of maintenance at the rate of Rs. 1,000/- per month for the wife and Rs. 500/- per month for the minor son can be said to be excessive, even if the husband is working as a labourer. 8. In view of the issues involved in the present proceeding, and in view of the fact that the scheme and scope of section 125 Cr. P.C. vis-a-vis scheme and scope of the Act of 1986 have not been properly considered and decided by the learned Principal Judge, Family Court, Katihar, this Court is inclined to remit the matter back to the learned Principal Judge, Family Court, Katihar, for fresh decision in the matter, after giving opportunity of hearing to both sides. On remand, the learned Principal Judge, Family Court, Katihar, shall be obliged to first decide the issue of divorce raised on behalf of the husband. On remand, the learned Principal Judge, Family Court, Katihar, shall be obliged to first decide the issue of divorce raised on behalf of the husband. If that issue is decided in favour of the husband, then in that case parties may be given opportunity to exercise option under Section 5 of the Act of 1986, and, thereafter, he shall proceed to decide the claim of maintenance made on behalf of the wife. So far claim of maintenance of minor child is concerned, that will have to be decided under Section 125(1) Cr.P.C. For deciding the claim of maintenance, learned Family Court shall further take into consideration the judicial pronouncement made by the Apex Court in the case of Shabana Bano (supra). If the claim of maintenance is allowed, then the learned Principal Judge, Family Court, Katihar shall decide the quantum of maintenance on the basis of evidence produced by both sides. 9. A grievance has been raised on behalf of the wife that though the impugned order was passed on 4.9.2008 and no stay order passed by this Court, yet the husband has not paid the amount of maintenance even for the aforesaid limited period. Since this Court has refused to interfere with the impugned order on the question of quantum of maintenance raised on behalf of the husband, the learned Principal Judge, Family Court, Katihar, shall ensure that the amount of maintenance allowed by the impugned order for that limited period is paid to the wife and the minor son and if need be, he may take all possible coercive measures against the husband for recovery of the aforesaid amount of maintenance. 10. For the reasons recorded above, the impugned order dated 4.9.2008 passed in Maintenance case No.125 of 2004 by the learned Principal Judge, Family Court, Katihar, is hereby set aside so far it relates to Cr. Revision No. 1280 of 2008 only and the matter is remitted for fresh decision in accordance with law on the points, besides others, as indicated in the preceding paragraphs. However, Cr. Revision No. 498 of 2009 filed on behalf of the husband stands rejected. 11. Revision No. 1280 of 2008 only and the matter is remitted for fresh decision in accordance with law on the points, besides others, as indicated in the preceding paragraphs. However, Cr. Revision No. 498 of 2009 filed on behalf of the husband stands rejected. 11. The learned Principal Judge, Family Court, Katihar, shall make all endeavours to decide the matter afresh expeditiously, preferably within a period of nine months from the date of receipt/production of a copy of this order, but before doing so he shall give reasonable opportunities of hearing to both sides.