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2012 DIGILAW 234 (CAL)

Parvex Jilani v. Rukhasana Parveen

2012-03-20

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. 1. THIS application is at the instance of the wife and is directed against the judgment and order dated November 29, 2010 passed by the learned Judge, Family Court, Calcutta in Misc. Case No.84 of 2009 under section 125 of the Cr. PC. 2. THE wife/opposite party herein instituted the aforesaid maintenance case under section 125 of the Cr. PC 1973, contending, inter alia, that the marriage between the parties was solemnised on April 22, 2007 and that after marriage they lived together at 9/D, Ripon Square, 3rd Floor, Kolkata-700016. The wife was subjected to torture and ill-treatment by the husband and her in-laws demanding more dowry. Ultimately, on July 1, 2008 she was driven out from her in-law's house as she failed to bring more dowry. Under the compelling circumstances, she took shelter at her father's house and she is defendent on her mother and brothers. She lodged a criminal case against the husband under sections 498A and 406 of the I.P.C. on October 15, 2009 before the Park Street P.S. She has no source of income, while the opposite party earns Rs.10,000/- per month. Under the circumstance, she claimed a sum of Rs:3,500/- per month as maintenance. 3. THE husband/petitioner herein contested the said case under section 125 of the Cr.PC by filing a written objection denying the material allegations contained in the application for maintenance. His specific case is that though the marriage between the two was duly solemnised, the allegation of torture and ill-treatment upon her by the husband and other in-laws was totally false. The allegation of driven out was totally false. In fact, on July 1, 2008, the wife and her relations created a scene in front of the house of the husband and ultimately, the men of the wife assaulted the husband and other members and for that reason, the husband filed a case under sections 324/114 of the IPC against the wife and her men on July 1, 2008. The said case is pending. On the same day, the petitioner left her matrimonial home along with her belongings and the parties began to live separately. The wife also lodged a case under sections 498A and 406 of the IPC against the husband and both the cases are now pending before the Metropolitan Magistrate Court, Calcutta. The said case is pending. On the same day, the petitioner left her matrimonial home along with her belongings and the parties began to live separately. The wife also lodged a case under sections 498A and 406 of the IPC against the husband and both the cases are now pending before the Metropolitan Magistrate Court, Calcutta. The husband tried to reconcile the matter in vain and so, ultimately, he divorced his wife by pronouncement of talaque thrice and he sent maintenance, mahr and other expenses by a cheque along with the talaquenama by Registered Post with A/D but the wife refused to take the same and as such, the said talaquenama along with other particulars were returned to him with the remark 'not claimed'. At present, he is earning Rs.4,500/- per month and his income is not to the tune of Rs. 10,000/- as claimed by the wife. So, the application should be dismissed. 4. BOTH the parties have adduced evidence in support of their respective contentions by examining themselves. The Opposite Party has also produced certain documentary evidence in support of his stand. Accordingly, the learned Judge, Family Court framed the following issue for decision:- The only question that has to be decided in this case is whether the petitioner is entitled to get maintenance allowance from the opposite party or not and if yes what should the quantum of maintenance allowance that should be awarded to her. 5. UPON analysis of evidence, the learned Judge, Family Court, decided the points in favour of the wife/opposite party herein. He has observed since both the parties have lodged cases against each other over the incident dated July 1, 2008 and the two cases are pending, it could not be stated which party is the actual offender. But he has concluded in the manner that there was a strange relationship between the husband and wife and for that reason, the wife was compelled to live separately from the husband and as such, maintenance at the rate of Rs. 1,500/- per month. 6. But he has concluded in the manner that there was a strange relationship between the husband and wife and for that reason, the wife was compelled to live separately from the husband and as such, maintenance at the rate of Rs. 1,500/- per month. 6. WHAT I find that it is the specific stand of the husband that after the incident dated July 1, 2008, he divorced his wife by pronouncement of three talaques and in compliance with the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, he made the provision for maintenance, payment of mahr and other benefits as per the provisions of the said Act. The learned Trial Judge discussed such contention but he did not come to a clear finding whether any talaque was effected by the husband against the wife and if so, what are the rights and obligations of the parties according to the provisions of the said 1986 Act. 7. IF the wife/opposite party herein had been divorced by the husband by the pronouncement of talaque as claimed by the husband/petitioner herein, the wife becomes a divorced wife and not a deserted lady. In case of desertion, the wife may proceed according to the provisions of section 125 of the Cr. PC 1973, but in case of divorce as claimed by the husband, the rights and obligations of the parties with relation to divorce shall be determined according to the provisions of the 1986 Act. But, it is unfortunate to note that the learned Trial Judge did not come to a definite finding in this regard. Though, it was the specific contention of the husband that he had made pronouncement of talaque to his wife and the talaquenama was sent by him to his wife by Registered Post along with other benefits as per provisions of the 1986 Act. 8. IN coming to the conclusion, I have considered the decision of Danial Latifi and Anr, v. Union of India reported in AIR 2001 SC 3958 . The Family Court is empowered to deal with an application under section 125 of the Cr. 8. IN coming to the conclusion, I have considered the decision of Danial Latifi and Anr, v. Union of India reported in AIR 2001 SC 3958 . The Family Court is empowered to deal with an application under section 125 of the Cr. PC as well as an application under the provisions of Muslim Women (Protection of Rights on Divorce), Act, 1986 and so, the same learned Ttrial Judge is vested to deal with such powers and the learned Trial Judge is empowered to treat the application under either of the provisions of the Cr. PC or of 1986 Act. In coming with such conclusion, I have also considered the decision of Shabana Bano v. Imran Khan (2010)1 SCC 666 referred to by the learned Lawyer for the wife/opposite party herein. 9. THE learned Lawyer for the opposite party has also referred to the other decisions for determination of the rights and obligations of the parties. But, since I have decided to remand the matter for decision afresh by the learned Trial Judge over the issue whether the husband had divorced the wife by pronouncement of talaque as contended, and if so, what are the rights and obligations of the parties according to the provisions of the 1986 Act, I am not discussing those issues. 10. IN that view of the matter, the defence stand of the petitioner having not been considered properly, the impugned judgment and order cannot be supported. The impugned judgment and order suffers from incorrectness. The conclusion is, therefore, erroneous. So, the same must set aside with a direction to decide the matter afresh in the manner indicated above. 11. THE application is, therefore, allowed. The impugned judgment and order- is hereby set aside. 12. THE learned Trial Judge shall, upon hearing both the sides, frame other points for determination over divorce as contended by the husband and if so, to decide the rights and obligations of the parties under the provision of the 1986 Act. He shall allow the parties to adduce further evidence in support of their respective contentions over those points and thereafter, he shall dispose of the application under section 125 of the Cr. PC in accordance with law within a period of three months from the date of communication of the order to him. 13. CONSIDERING the circumstances, there will be no order as to costs. PC in accordance with law within a period of three months from the date of communication of the order to him. 13. CONSIDERING the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.