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2012 DIGILAW 994 (GAU)

Abul Kalam Azad v. Khaimala Khatun (Mustt. )

2012-08-22

PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Prasanta Kumar Saikia, J. 1. This application under Section 397/401 read with Section 482 CrPC is directed against the judgment and order dated 19.05.2011, passed by the learned Sessions Judge, Nalbari in Criminal Revision No. 32/2008 affirming the order dated 29.09.2008, passed by the learned Sub-Divisional Judicial Magistrate (S) Nalbari in case No. 73M/2006 granting maintenance allowance to the opposite party herein at the rate of Rs. 1000/- per month and Rs. 800/- per month each to the children of the parties with immediate effect. Being aggrieved by the order, dated 29.09.2008 granting maintenance allowance to the opposite party/petitioner at the rate of Rs. 1000/- per month and order dated 19.05.2011, passed by the learned Sessions Judge, Nalbari in Criminal Revision No. 32/2008 affirming the judgment rendered by Magistrate in No. 73M/2006 on 29.09.2008, the applicant/second party has come up before this Court with the present proceeding requesting this Court to set aside the order(s), passed by the Courts below. 2. The facts, necessary for disposal of this present proceeding, in short, are that one Mustt. Khaimala Khatun is said to be the legally married wife of one Abul Kalam Azad. For convenience of discussion, Mustt. Khaimala Khatun and Abul Kalam Azad would be referred to hereinafter as first party and second party respectively. 3. In her application under Section 125 CrPC, the first party (wife) contends that she was married by the second party according to the rites and customs of Islamic law After solemnization of their marriage, she went to the house of her husband (second party) and started living with him as husband and wife. Out of their wedlock, three children were born to them; their age at the time of filing of the proceeding in question was 6 years, 4 years and 7 months only. 4. Soon after the marriage, the second party started to demand the first party dowry which gave rise to series of disputes between them. The first parry did everything to ensure that their marriage did not get dissolved due to atrocities perpetuated on her by her husband. In that connection, she reported the matters to the villagers for their intervention. The villagers, on her request, tried to settle the matter but in vain. 5. On 16.06.02, the second party drove the first party out of his house along with her children. In that connection, she reported the matters to the villagers for their intervention. The villagers, on her request, tried to settle the matter but in vain. 5. On 16.06.02, the second party drove the first party out of his house along with her children. Immediately, on the next day, the second party pronounced three talaque seemingly to dissolve his marriage with her. Such a conduct on the part of her husband, forced her to live in her poor parents house with her young children since she on her own was not in a position to maintain herself and her three young children. 6. She, therefore, approached the Court by way of filing an application under Section 125 Cr.P.C. seeking Rs. 1000/- for each of her children as being their maintenance allowances inasmuch as, the second party despite having sufficient means of earning refused to maintain his young children without any just cause or excuse. It has also been stated that the second party is a rich man who earned Rs. 30,000/- pm. 7. On receipt of the application under Section 125 Cr.P.C., the learned Magistrate issued notice of the proceeding to the second party therein requiring him to appear before the Court to answer the allegations brought against him. The second party entered appearance and contested the case having filed written statement. His case inter-alia was that the first party has founded her case on lies, conjectures and surmises. 8. According to him, the first party left his society/company quite often and on mere drops of hat making his life and living horrible and that on 16.06.06 too, she left her matrimonial house without any reasonable cause and excuse. What is worse, she also took her children with her for which second party was forced to dissolve his marriage with the first party and on the dissolution of the marriage, he paid her Rs. 24,500/- being the value of differed Mahar and an amount to the tune of Rs. 2,500/- being the maintenance allowance for the period of iddat. 9. It is his specific case that he continues to pay his children maintenance allowance regularly. On the other hand, he is a mere cultivator who hardly earns Rs. 1500/- p.m. Out of his earnings, he is required to maintain her old mother and his niece as well. 2,500/- being the maintenance allowance for the period of iddat. 9. It is his specific case that he continues to pay his children maintenance allowance regularly. On the other hand, he is a mere cultivator who hardly earns Rs. 1500/- p.m. Out of his earnings, he is required to maintain her old mother and his niece as well. He, therefore, not in a position to pay any maintenance allowance to his children as claimed by petitioner, and as such, he urges the Magistrate to dismiss the proceeding instead. 10. Out of the aforesaid pleadings of the parties, learned Magistrate framed the following points for determination. They are:- i) Whether the 1st party left the society along with her children without just cause? ii) Whether any talaque was pronounced and, if so, whether the talaque was valid in the eye of law? iii) Whether the 2nd party neglected to maintain the 1st party and her children? iv) Whether the 1st party is entitled to maintenance for herself and for her minor children and, if so, to what extent? 11. While the first party examined two witnesses including herself to support her case, the second party examined three witnesses including himself in rebuttal to the allegations brought against him. The learned Magistrate after recording the evidence of both the parties and on hearing the arguments offered by them answered all the aforesaid points in favour of wife/first party, allowed her petition and ordered the second party to pay his wife and three children maintenance allowance as aforesaid. 12. Being aggrieved by the aforesaid judgment, the second party approached the learned Sessions Judge, Nalbari and-challenged the judgment of the Magistrate, mainly on the ground that the first party is not entitled to maintenance allowance she being a divorcee, more so, when she had already received Rs. 82,000/- as being her deferred Mahar, her maintenance allowance for the period of iddat and one time maintenance allowance. 13. What is important to note is that in her petition, the wife/petitioner never applied for maintenance allowance for herself. But then, the learned Magistrate granted maintenance allowance not only to their children but also directed the second party to pay the first party Rs. 1000/- pm as being her maintenance allowance. The husband/applicant, therefore, urges the Sessions Court to set aside the judgment of learned Magistrate aforesaid. 14. But then, the learned Magistrate granted maintenance allowance not only to their children but also directed the second party to pay the first party Rs. 1000/- pm as being her maintenance allowance. The husband/applicant, therefore, urges the Sessions Court to set aside the judgment of learned Magistrate aforesaid. 14. Learned Sessions Judge, Nalbari issued notice of the proceeding to the wife/first party and after hearing the arguments, advanced by the parties, chose to affirm the judgment of the learned Magistrate. It is those judgments which have been challenged in this present proceeding citing several infirmities in those judgments. 15. I have heard argument advanced by the learned counsel for the petitioner/husband as well as the learned counsel for the respondent/wife. The main grievance of the petitioner/husband in this proceeding was that the respondent/wife approached the Court of the Magistrate and applied for maintenance allowance for her children @ Rs. 1000/- pm. She never/ever asked the Magistrate to grant her maintenance allowance, presumably considering herself to be the divorce wife of petitioner/second party. 16. Inspite of above, the learned Magistrate granted her maintenance allowance to her @ Rs. 1000/- pm which was unfortunately affirmed by the learned Sessions Judge as well ignoring the fact that in her application under Section 125 CrPC, the wife/respondents herself admitted her being divorced by the husband/second party and also ignoring the fact that wife/petitioner claims that she filed a separate proceeding for recovery of unpaid dues payable on divorce. 17. Such a direction requiring the husband/petitioner to pay his divorced wife (the first party) was profoundly illegal. Since the learned Sessions Judge, too failed to appreciate such a serious infirmity in the judgment, rendered by the Magistrate, the judgment, passed by the learned Sessions Judge exercising his revisional powers is, therefore, liable to be set aside by this Court in exercise of power under Section 482 CrPC. 18. On the other hand, refuting such an argument from the side of the husband/petitioner, learned counsel for the wife/respondent has contended that the decision rendered by the Courts below are passed on facts and the judgments, they rendered, have the sanctioned of law as well. In that connection, it has been pointed out that the learned Magistrate has rightly held that pronouncement of three talaque at one go is illegal and as such, same cannot dissolve a valid Muslim marriage. 19. In that connection, it has been pointed out that the learned Magistrate has rightly held that pronouncement of three talaque at one go is illegal and as such, same cannot dissolve a valid Muslim marriage. 19. According to learned counsel for the wife/respondent, a Muslim marriage can be dissolved only when talaques are pronounced in accordance with dictum of Islamic law which contemplates that talaque can dissolve a valid marriage only when it is proceeded by a pre-talaque conference, aimed at reconciliation between the parties to the marriage and when three talaques were pronounced by the party concerned at certain intervals prescribed under the Mahammadian Law. 20. Unless, aforesaid conditions are full filled, a valid Muslim marriage cannot be brought to an end. In that connection, the learned counsel for the petitioner has referred me the decision of the Apex Court of the country, rendered in the case of Jagjir Kour & Anr. Vs. Jaswant Singh & Anr. reported in AIR 1963 SC 1521 as well as the decision rendered in the case of Danial Latifi & Anr. Vs. Union of India reported in (2001) 7 SCC 740 . 21. The decision rendered by this Court in the case of Rukia Khatun Vs. Khaleque Laskar reported in 1981 (1) GLR 375 is also gone through. In the aforesaid case, this Court clearly held that when three talaques are pronounced in one go and that too without proceeding by a pre-talaque conference, the pronouncement of three talaque in one go cannot bring and end to a valid Muslim marriage. Same principle has been reiterated in the case of Jinnat Fatima Rashid Vs. Ikbal Anowar reported in 1993, Supplement (1) GLR 85. 22. I may note here that the learned counsel for the wife/respondent has submitted that this proceeding under Section 401 Cr.PC is not maintainable in view of prohibition contained under Section 397(3) Cr.PC since the husband/petitioner has already preferred a revision proceeding against the order impugned herein having file an application under Section 397 Cr.PC before the Sessions Judge, Nalbari. 23. This contention was opposed to by learned counsel for petitioner husband contending that second revision is not always barred. In appropriate case, the High Court may entertain second revision and that too, on an petition by the same person. 23. This contention was opposed to by learned counsel for petitioner husband contending that second revision is not always barred. In appropriate case, the High Court may entertain second revision and that too, on an petition by the same person. In that connection, the learned counsel for husband/petitioner has referred me the decision of Hon'ble Supreme Court rendered in the case of AIR 1997 SC 987 in the case of Krishnan & Anr. Vs. Krishnaveni & Anr. 24. In Krishnan (supra) Hon'ble Supreme Court held that: Ordinarily, when revision has been barred by Section 397(3) of the Code, a person- accused/complainant- cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when expeditious trial is conducted. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when expeditious trial is conducted. The learned counsel for petitioner/husband has also referred me to the decision of this Court reported in 2005 (1) GLT 599 to fortify its claim that the second revision is not always barred. 25. So situated, let us see whether the petitioner/husband could make out a case where this Courts in exercise power under Section 401 read with 482 of Cr.PC needs to set aside the orders of the Courts below as prayed for by the learned counsel for the husband/petitioner. I may also note here that ordinarily, in a proceeding under Section 397/401 CrPC, the revisional Court need not/should not consider the evidence on record on merit. 26. However, considering the allegations in the petition herein, I find it necessary to consider the evidence on record on merit as well. On such perusal of the pleadings of the parties in maintenance case No. 73/06 under Section 125 CrPC, I have found that in his written statement, the husband/second party in no uncertain terms claims that he divorced the wife/first party on pronouncing three talaques in one go. He even went to extent of saying on divorcing his wife, he paid her Rs. 27,000/- in liquidation of deferred Mahar and also in satisfaction of maintenance allowance for the period of iddat. 27. Here, it is also worth noting that in her petition under Section 125 CrPC, wife/petitioner too admitted that her husband/second party divorced her. But then, there is absolutely nothing on record to show that the husband/second party had divorced his wife on following the directions rendered under the Islamic Law vis-a-vis divorce. This speaks loud and clear that the talaque, talked about by husband/second party, is a non est in law. 28. The admitted position that that the husband/second party divorced his wife/petitioner pronouncing three talaquas at a time, and that too, without holding even the pre-talaque conference as required under the personal law of the parties makes it inevitable for this Court to hold that the marriage between the parties still subsists and it never stands dissolved, as claimed by the husband/second party. 29. 29. In above view of the matter, one cannot find fault with the decision of Magistrate holding the marriage between the parties still subsisting or for that matter confirming such a decision of the Magistrate by the learned Sessions Judge in exercise of his revisional power. Being so, I am not inclined to interfere with the finding of the learned Courts below that the marriage between the parties continues to subsists even on the date of filing of the proceeding in question. 30. Once it is held on the materials on record that the marriage between the parties is still subsisting, the husband/second party cannot escape the liability of maintaining his wife and children if they are unable to maintain themselves and if husband/second party despite having sufficient means neglected to maintain his wife and children. However, before I could proceed further, I find it necessary to know if the husband/second party had paid his wife Rs. 82,000/- as being i) deferred Mahar, ii) maintenance for the period of iddat and iii) her one time maintenance allowance. 31. Though the second party/husband claims that on divorce, his wife received Rs. 82,000/- from him in satisfaction of the dues payable to her on dissolution of her marriage with her and although he claims that his wife received aforesaid amount executing a written receipt and although he claims that Ext.Ka (1) and Ka (2) are the signature of his wife/first party on the aforesaid receipt (Ext.Ka), yet all those claims were firmly denied by wife/first party further asserting that at no point of time, the second party paid her any dues payable on divorce. 32. Such strong denial on the part of the petitioner/wife requires the husband/second party to establish that the signatures on the receipt Ext Ka are the signature of none else but of the wife/first party and this could have been done by sending the Ext Ka to the handwriting expert. Such an exercise became inevitable in view of vague evidence rendered by the witnesses examined from the side of husband/second party touching the point of signature of first party on the Ext.Ka. 33. Since that was not done, it does not lie in the mouth of second party/husband to say that signature on the Ext.Ka, Ext. Ka(1) and Ext.Ka(2) to be precise to be of wife/first party. 33. Since that was not done, it does not lie in the mouth of second party/husband to say that signature on the Ext.Ka, Ext. Ka(1) and Ext.Ka(2) to be precise to be of wife/first party. In the face of the above, in my considered view, it cannot be held that the second party has established that Ext Ka(1) and Ext. Ka (2) are the signatures of wife/first party and that she put such signatures on Ext. Ka acknowledging the receipt of money mentioned therein. 34. Here, it needs to be stated that in his written statement, the husband/second party contends that on divorcing his wife, he paid her Rs. 27,000/-, item-wise break up of same being, Rs. 24,500/- towards the deferred Mahar and Rs. 2,500/- towards maintenance allowance for the period of iddat. But, in a sharp contrast to such a stance, taken in his written statement, in their evidence, the second party claims that he paid Rs. 82,000/- to the first party on dissolution of his marriage with her. 35. The second party and his witnesses even went to the extent of saying that out of aforesaid amount, second party paid i) Rs. 25,000/- as being the deferred Mahar, ii) Rs. 2000/- as being the maintenance allowance during the period of iddat and iii) Rs. 51,000/-as being one time allowances to the first party. The evidence of second party and his witnesses, thus, not only contradict the quantum of amount, as mentioned in the W.S. but they dispute the quantum of amounts, paid item-wise as well. Such disclosure makes the claim of second party that he paid his wife/first party all the dues payable on divorce a claim without any element of truth. 36. In the fact of above revelations, one cannot find fault with the decision of learned Courts below that the second party could not establish that on divorcing his wife/first party, he paid her all the dues payable on divorce. Being so, I find no reason to interfere with the judgment of the Courts below also on the finding that husband/second party could not establish that he had paid his wife all the dues payable on divorce. 37. It is in those backdrops, let me considered if the husband/second party neglected to maintain his wife and his children. Being so, I find no reason to interfere with the judgment of the Courts below also on the finding that husband/second party could not establish that he had paid his wife all the dues payable on divorce. 37. It is in those backdrops, let me considered if the husband/second party neglected to maintain his wife and his children. A bare perusal of materials on record reveals that it is the specific claim of wife/petitioner that her husband did not maintain his wife. The husband/second party too never claims to maintain his wife. Though in his written statement, he claims to have maintained his children yet in his evidence, he did not utter a word to support such a claim, made in the written statement 38. Quite contrary to it, during trial, he and his witness laid stress on the fact that the husband/second party had divorced his wife/first party and on such divorce, he had already paid his divorced wife Rs. 82,000/- in satisfaction of various dues payable on divorce. As stated above, I have already found that the claim of the husband/petitioner that he paid his wife maintenance allowance has been found far from being established. Being so, it needs to be held that husband/second party never maintains his wife and his children. In my opinion, no other conclusion could be deduced from the materials on record. 39. This brings us to the last chapter of the case of the parties where we are to see if the second party having sufficient means neglected to maintain his wife and children who are unable to maintain themselves. The materials on record clearly reveal that the wife/first party has no means of livelihood and as such, she is not in a position to maintain her children, born out of her marriage with the husband/second party. Record further reveals that the second party has sufficient means of earning from his various sources of income. 40. The evidence rendered by PW 1 and PW 2 makes such position clear. Considering the evidence on record in its entirety and having regard to the status of the parties and other relevant and related matter including the well being of the children of the parties and prevailing price index, I am of the opinion that the learned Magistrate has rightly concluded that an amount to the tune of Rs. 1000/- per month and Rs. 1000/- per month and Rs. 800/- per month need to be granted as maintenance allowances to the wife and children of the petitioner/husband respectively. 41. Learned counsel for the applicant/husband has arduously contends that since the wife/petitioner never prays for maintenance allowance for herself, the trial Court was not justified in granting her maintenance allowance. The learned revisional Court also committed huge illegality in affirming the judgment which requires the husband/second party to pay maintenance allowance to his wife. The learned counsel for the husband/second party urges this court to set aside the judgment of the Courts below at least in so far granting of maintenance allowance to the first party is concerned. 42. I have given my anxious consideration to the aforesaid argument, advanced from the side of husband/applicant. But such an argument is found to be totally devoid of substance. Section 125 of the CrPC is a special legislation, aimed at protecting the most weak and the most vulnerable section of the society. One of the main objects of such legislation is to avoid vagrancy, misery and destitution in women who are forced to live in miserable conditions which are further aggravated by their abject poverty which befalls upon them for variety of reasons. 43. Therefore, such legislation needs to be interpreted in that way which advances the cause of those down trodden of the society whom the destiny does not treat well. Any other interpretation would be totally incongruous with the purpose and object for which aforesaid legislation was brought into existence. 44. Being so, whenever a Magistrate, dealing with an application under Section 125 CrPC, finds a wife/child/any other person, entitled to protection under Section 125 CrPC, is neglected by the person(s) who, under the law, is required to maintain those person(s), he, off course, on fulfillment of conditions, incorporated in Section 125 CrPC, can grant them such amount, as he deems fit and proper as being their maintenance allowances. 45. In that scenario, a Magistrate would not be justified in not granting maintenance allowances to the wife of a person only for there being no prayer seeking maintenance allowance in the application under Section 125 of CrPC. In our instance case, we have already found that first party is a woman without any means of earning. 45. In that scenario, a Magistrate would not be justified in not granting maintenance allowances to the wife of a person only for there being no prayer seeking maintenance allowance in the application under Section 125 of CrPC. In our instance case, we have already found that first party is a woman without any means of earning. On the other hand, second party/husband is also held to have means of earning and despite above, he neglected to maintain his wife unable to maintain herself and her young children. 46. Since I have already found that wife's not making a prayer seeking maintenance allowance from her husband does not debar a Magistrate from ordering her husband requiring him to pay his wife a reasonable maintenance allowance, the Magistrate by granting the first party/wife maintenance allowance at the rate of Rs. 1000/- per month has done what exactly law expects him to do in the facts and circumstances of the case under consideration. 47. Being so, I have found that the petitioner/husband could not make out a case for requiring this Court to set aside the judgments of the Courts below since said applications under Section 397/401 read with Section 482 of CrPC lacks merit and as such, no fault can be found for Magistrates passing an order granting maintenance allowance in favour of wife/respondent at the rate aforesaid as well as the judgment, rendered by the Court of Sessions affirming the order of the former. 48. Resultantly, this criminal petition is dismissed. Return the LCR forthwith. Petition dismissed