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2014 DIGILAW 1539 (MP)

Shamim Ahmad v. Kaneez Bano

2014-11-26

N.K.GUPTA

body2014
JUDGMENT : N.K. Gupta, J. 1.The applicant has preferred the present revision against the order dated 31.3.2004 passed by the Second Additional Sessions Judge, Khandwa in Criminal Revision No.236/2002 whereby the Revisionary Court has modified the order dated 2.8.2002 passed by the JMFC Khandwa in MJC No.73/1997 whereby the JMFC Khandwa granted a maintenance of Rs.1000/- per month to the respondent for the period of Iddat. Also granted a sum of Rs.11,786/- for payment of Mahr and maintenance of Rs.250/- per month was granted for Mustafa son of the respondent only for two years. 2. The brief facts of the case are that the respondent has accepted the fact that she was divorced by the applicant, and therefore she had moved an application under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to “Special Act”) for payment of Mahr and maintenance etc. In the application, the respondent has demanded that according to the conditions of the Talaq, it was for the applicant to provide maintenance for the period of Iddat, and therefore she demanded a maintenance of Rs.3000/- per month for that period. Similarly, she prayed for a lump-sum maintenance of Rs.25,000/-. During the pendency of the application, a child was born, and therefore the application was amended and additional maintenance was demanded. 3. The applicant in his reply denied the contents of the application filed by the respondent and it is submitted that the respondent had waived her Mahr. It was pleaded that the respondent left the house of the applicant on 22.6.1997 and at that time she was not pregnant. In May 1997 one girl child had born to the respondent, who expired after half and hour, and therefore he claimed that the delivery took place to the respondent was not related to the applicant. Under these circumstances, it was prayed that the application of the respondent be dismissed. 4. After recording the evidence of the parties, the learned JMFC Khandwa has passed an order on the application that the respondent was entitled to get a sum of Rs.11,786/- towards the amount due to Mahr. A sum of Rs.1000/- per month was also granted to the respondent for entire period of Iddat. It was found that on 23.8.1997 when she was ousted from the house of the applicant, she was pregnant. A sum of Rs.1000/- per month was also granted to the respondent for entire period of Iddat. It was found that on 23.8.1997 when she was ousted from the house of the applicant, she was pregnant. A child born to the respondent was of the applicant, and therefore a maintenance of Rs.250/- per month was granted to the child. 5. In revision, the Revisionary Court added the relief to the respondent that she was also entitled to get a sum of Rs.5000/- towards reasonable and appropriate arrangement of maintenance which was not done by the applicant towards the respondent. Similarly, it was also directed that list of articles given in Ex.P-16 be returned to the respondent. 6. I have heard the learned counsel for the parties. 7. It would be apparent that after passing of order dated 2.8.2002 by the JMFC Khandwa, the applicant did not file any revision before the appropriate Court, on the contrary, revision was filed by the respondent before the Sessions Judge, Khandwa. The applicant did not file any counter revision when notice of this revision was served to him, and therefore it appears that he did not challenge the order passed by the trial Court, hence the order passed by the trial Court became final against the applicant and it cannot be challenged now. The applicant has filed the revision against the order of the Sessions Court, and therefore the additional relief granted to the respondent is under question. 8. According to the provisions of Section 3 of the Special Act, it was for the husband to return the property and articles received at the time of marriage. In this connection Kaneez Bano (PW-1), Abdul Aziz Khan (PW-2), Sheikh Hayat (PW-3) etc. have proved the list Ex.P-16 that such articles were given to the married couple. In this connection applicant Shamim Ahmed (DW-1) has accepted in para 1 of his cross examination that he could not give any articles shown in the list back, because the respondent was residing at a place where he felt risky to visit. He did not say that he did not receive any of such articles, and therefore according to the provisions of Section 3(1)(d) of the Special Act, the first Revisionary Court has rightly directed the applicant to return the various articles as shown in the list Ex.P-16. 9. He did not say that he did not receive any of such articles, and therefore according to the provisions of Section 3(1)(d) of the Special Act, the first Revisionary Court has rightly directed the applicant to return the various articles as shown in the list Ex.P-16. 9. So far as the grant of sum of Rs.5000/- is concerned, it would be apparent that when the notice of the divorce was given by the applicant to the respondent, then immediately he would have sent the amount of maintenance for a period of Iddat. It is found that the respondent was pregnant when she had left the house of the applicant and Talaq was given to her, and therefore according to the definition of Iddat period under Section 2(b)(iii) of the Special Act, she was entitled to get that amount of maintenance in Iddat period soon after the Talaq was given, and therefore when she was found pregnant, her Iddat period was increased and for entire period the applicant did not make any arrangement to provide maintenance, and hence it was necessary for the first Revisionary Court to grant compensation of Rs.5000/- in lieu of timely payment. 10. On the basis of the aforesaid discussion, no illegality or perversity has been done by the first Revisionary Court. There is no reason to accept the present revision. Consequently the present revision filed by the applicant Shamim Ahmad is hereby dismissed. 11. A copy of this order be sent to the courts below along with their records for information with a direction that at the time of execution of the order, Executing Court should see that Iddat period of the respondent shall be counted according to the provisions of Section 2(b)(iii) of the Special Act.