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2014 DIGILAW 1358 (MP)

Mohammed Anwar Siddiqui v. Shefta Afroz

2014-10-17

N.K.GUPTA

body2014
JUDGMENT : N.K. Gupta, J. The applicant has preferred the present revision being aggrieved with the order dated 6.4.2007 passed by the learned Second Additional Principal Judge, Family Court, Bhopal in MJC No.299/2004 whereby the maintenance of Rs. 1500/- was granted to the respondent. 2. The brief facts of the case are that the marriage of the parties took place on 5.10.2000. On 9.9.2001 one male child viz. Hamja was born to the respondent. The respondent has filed an application under Section 125 of Cr.P.C. before the trial Court that she was being harassed for dowry demand and other reasons. After delivery of a son, she was not taken to the house of the applicant for a longer period and thereafter when she was taken again she was sent back. On her complaint a case under Section 498-A of IPC was registered against the applicant. It was submitted in the application that the applicant was a Generator In-charge in United Arab Emirate and earning approximately Rs. 30,000/- per month. The respondent sought a sum of Rs. 3000/- per month as maintenance. 3. The applicant in his reply denied all the allegations. On the contrary he has pleaded that the applicant kept his wife with comfort. She was interested that the applicant should reside in the parents' house of the respondent, and therefore in December 2001 she herself left the house of the applicant. Thereafter he moved an application before the Family Court to restore the conjugal rights, but the respondent had lodged a false FIR against the applicant and his family members. Under these circumstances, on 20.6.2005 the applicant gave Talaknama to his wife and intimation was given by registered post. She was not entitled to get any amount of maintenance from the applicant. In alternate it was pleaded that the respondent was a well educated woman, who was earning a sum of Rs. 3,000/- per month by teaching the students in English subject. 4. The leaned Additional Principal Judge, Family Court after considered the evidence adduced by the parties has granted maintenance of Rs. 1500/- per month to the respondent. 5. In the present revision, the respondent did not appear before the Court though notice of this revision was served, and therefore ultimately I have heard the learned counsel for the applicant. 6. 4. The leaned Additional Principal Judge, Family Court after considered the evidence adduced by the parties has granted maintenance of Rs. 1500/- per month to the respondent. 5. In the present revision, the respondent did not appear before the Court though notice of this revision was served, and therefore ultimately I have heard the learned counsel for the applicant. 6. It appears that the applicant did not deny the fact that he was working in UAE and earning a sum of Rs. 30,000/- per month. However, the trial Court has assessed his income on the basis of wages of an unskilled labour by collector rate. A person, who is healthy and not handicapped, then it shall be presumed that he would earn the wages equal to wages of an unskilled labour, and therefore income assessed by the trial Court is correct. Similarly, assessment of amount of maintenance done by the trial Court appears to be correct. 7. It was challenged by the applicant that the respondent had any reason to get maintenance without living with the applicant. It appears that the respondent was shunted out from the house of the applicant in the year 2001 and she had moved an application for maintenance in the year 2004. If the applicant was interested to take the respondent to his house and there was no reason of any cruelty etc., then the applicant would have done some efforts to bring the respondent to his house. Mohd. Anwar Siddiqui (DW-1) has stated that he had moved an application before the Family Court for restoration of conjugal rights, but he has filed so many documents before the trial Court but no such copy is filed to show that he had moved an application. Since he has not made any effort to bring his wife to his house in last three years before filing of maintenance application, the testimony of the respondent Shefta Afroz (PW-1) and her father Mohd. Ahmed (PW-2) appears to be acceptable that on 14.12.2001 the respondent was shunted out from the house of the applicant and thereafter the applicant did not care to maintain his wife or to bring to his house. Hence the trial Court has rightly found that the respondent was entitled to get maintenance amount without residing with the applicant. 8. Ahmed (PW-2) appears to be acceptable that on 14.12.2001 the respondent was shunted out from the house of the applicant and thereafter the applicant did not care to maintain his wife or to bring to his house. Hence the trial Court has rightly found that the respondent was entitled to get maintenance amount without residing with the applicant. 8. The learned counsel for the applicant has pressed the main point of the case that the applicant divorced his wife in the year 2005 and Talaknama Ex.D-2 was sent to the respondent. Envelop Ex.D-1 has also been proved. The Fatwa Ex.D-3 was obtained and translation of that Fatwa Ex.D-4 was also filed. However, it is apparent from the record that the document Ex.D-2 sent by post could not be served to the respondent and on the Envelop Ex.D-1 a report was appended by the Postman that the letter was not served. 9. The learned counsel for the applicant has submitted that the respondent Shefta Afroz (PW-1) and her father Mohd. Ahmed (PW-2) have accepted in their cross examination that the Talaknama was served to the respondent in the Court during the pendency of the case. However, such admission has no value at this stage, because the applicant has filed the Talaknama Ex.D-2 which was sent by post, but no such Talaknama is produced before the Court which was handed over to the respondent in the Court. If the admission done by the respondent and her father is considered, then it would be apparent from the statement of Mohd. Ahmed (PW-2) that the Talaknama was not valid. Therefore, it was the duty of the applicant to prove the document which was handed over to the respondent in the Court so that the trial Court or this Court could examine the document to assess as to whether that document having heading Talaknama was the sufficient document to enforce divorce between the parties, but no such document is filed by the applicant and no acknowledgment has been shown that it was handed over to the respondent in the Court. Under these circumstances, the applicant has failed to prove that he divorced his wife in a valid manner. Hence the plea of the applicant cannot be accepted that since he gave divorce to his wife, therefore she was not entitled to get any maintenance under Section 125 of Cr.P.C. 10. Under these circumstances, the applicant has failed to prove that he divorced his wife in a valid manner. Hence the plea of the applicant cannot be accepted that since he gave divorce to his wife, therefore she was not entitled to get any maintenance under Section 125 of Cr.P.C. 10. On the basis of the aforesaid discussion, there is no reason so that any interference in the impugned order dated 6.4.2007 passed by the Second Additional Principal Judge, Family Court, Bhopal can be done. Consequently, the present revision filed by the applicant is hereby dismissed with cost. 11. A copy of this order be sent to the trial court along its records for information.