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2015 DIGILAW 116 (JHR)

Shamshuddin v. State of Jharkhand

2015-01-27

AMITAV K.GUPTA

body2015
ORDER : Amitav Kumar Gupta, J. 1. This revision application has been directed against the order dated 30.7.2011 passed in Maintenance Case No. 85 of 2009 by the learned Principal Judge, Family Court, Ranchi whereby the petitioner was directed to pay maintenance Rs. 3,000 per month to O.P. No. 2 and Rs. 1,500 per month to the minor son, O.P. No. 3-Md. Anjar. Md. Mokhtar Khan, learned Senior Counsel for the petitioner, has submitted that the award of maintenance to O.P. No. 2 by the Trial Court is against the provisions as the O.P. No. 2 was given divorce and she can claim the maintenance under the provision of Muslim Women (Protection of Rights on Divorce) Act, 1986. That the Trial Court has failed to appreciate the fact that petitioner has given talak to O.P. No. 2 by way of Khula, that under the Mohammadan Law talak by a way of Khula is given when a Muslim married lady asks for it forfeiting her rights to claim maintenance for Iddat period and Dainmehar, therefore, she is not entitled to any maintenance. Secondly it has been urged that the Court below erred in not considering the fact that O.P. No. 3 was a major son on the date of filing of the application and this plea has been taken by the petitioner in the Court below and Voter Identity Card was produced to show that he was aged about 18 years at that point of time; on the above facts it is contended that the impugned order is not sustainable in law or on facts. 2. Learned Counsel for the State has submitted that the dispute raised by the petitioner was considered by the Trial Court as it is evident from the discussion of the evidence and the materials on record. The Court held that there was no valid talak that O.P. No. 2 was not residing with the petitioner on the day talak was given as she had been driven out of the matrimonial home; that the Court below has recorded a finding that the petitioner could not produce any document in the Court below to show that O.P. No. 3 was a major, that the impugned order has been passed in accordance with law. 3. Heard. Perused the impugned judgment and materials on record. Admittedly O.P. No. 2-Razia Khatoon along with her minor son O.P. No. 3 namely Md. 3. Heard. Perused the impugned judgment and materials on record. Admittedly O.P. No. 2-Razia Khatoon along with her minor son O.P. No. 3 namely Md. Anjar, had filed the application under Section 125 of the Cr.P.C. for grant of maintenance of Rs. 5,000 per month alleging that the petitioner (O.P.) has ousted them from the house. On the other hand, the petitioner had filed written statement stating therein that he had divorced O.P. No. 2 on 7.7.2009 by pronouncement of talak and necessary communication has been sent through the Emarat-sharia. That he had also sent the talaknama by registered post on 21.11.2009. 4. The Trial Court has discussed the evidence of the witnesses and O.P. No. 2 was examined as PW-2 wherein she admitted that Md. Wajair and Md. Anjar were born out of the wedlock. That she gave birth to Md. Anjar. 15 years after the birth of Md. Wajair. She testified that since the sister of petitioner (O.P. Naeema Khatoon) was given talak by her elder brother Md. Soaib, O.P. petitioner has ousted her and her two sons from the house. She went to reside in her sasural matrimonial home) but the O.P. refused to keep her. That PW-2 has deposed that the petitioner has a wholesale business in Mahua, vegetables, etc. and earns Rs. 30,000-35,000 per month. She (PW-2) has admitted that her son has passed matriculation and the elder son is residing separately and is not maintaining her and her minor son. She expressed her ignorance about the talak on 7.7.2009 and receipt of talaknama. 5. The petitioner has examined himself as O.P. No. 1 admitting his marriage with O.P. No. 2. His testimony is that he had never ousted O.P. No. 2 from the house rather O.P. No. 2 is a quarrelsome lady and she used to heekle him and his sister on the instigation of her brother Md. Soaib. He had deposed that he had made plans to take divorce from his wife and on 7.7.2009 relatives of both sides assembled in Kurgi village and effort for settlement was made but compromise could not taken place as O.P. No. 2-wife is a short tempered lady. That O.P. No. 2/the wife asked for talak and she has refused the expenditure of Iddat and Dainmehar and relinquished her right on the ground that her brother being a Government servant shall take better care of her. That O.P. No. 2/the wife asked for talak and she has refused the expenditure of Iddat and Dainmehar and relinquished her right on the ground that her brother being a Government servant shall take better care of her. Thereafter, in the presence of panchas on 7.7.2009 he had given three talak as per Muslim Law and rites and snapped his ties. That he had sent the talaknama by registered post on 21.11.2009. In cross-examination, he has stated he can produce the birth certificate of his son Md. Anjar and further stated that on 7.7.2009, he had divorced his wife in presence of 2-3 persons but he does not know the names of said 2-3 persons. He has admitted that he could not produce any paper to the effect that his wife has relinquished her rights of expenditure and Dainmehar and denied that he had ousted his wife and sons. OPW No. 2, Abdul Rab is the brother of the petitioner and from his cross-examination, it has been noted that he could not produce any documentary proof regarding the age of his nephew Md. Anjar. He has admitted that at the time of takkhe along with Kalim Mian, Almol and Sadiwue Mian were present but neither his signature nor the signature of the above persons were taken on the talaknama. OPW 3, Akhter Ali has stated that on 7.7.2009 Razia Khatoon was given talak by pronouncement of talak three times. In his cross-examination, he has admitted that he could not produce any document or paper to show that O.P. No. 3 was aged about 19 years and he also admitted that he was not present at the time of talak and he learnt regarding the talak from some other persons and he has not seen any paper. 6. The evidence of the witnesses have been discussed by the Court below and it has rightly held that the petitioner has not proved the talaknama and no document regarding service of talalknama has also been brought on record. The Court below took note of the fact that the story of talak was developed on 7.7.2009 in the show-cause after filing of the application by O.P. No. 2/wife on 10.6.2009 It is noticed that time O.P. No. 2 was not residing with the petitioner. In the given facts, the Court below has rightly held that the plea of talak is not tenable. 7. In the given facts, the Court below has rightly held that the plea of talak is not tenable. 7. It is evident that no clinching document was produced by the petitioner to show that O.P. No. 3 Md. Anjar was a major. The petitioner is the father and he should have at least produced the documents of the school where O.P. No. 3 was studying to bring on record the date of birth of O.P. No. 3 but he has failed to do so. Thus, the Court below has rightly held that there is no document to show that O.P. No. 3 was a major on the said date. 8. In view of the evidence on record, the finding of the Trial Court that the petitioner has failed to establish the fact that talaknama was effectively served will only lead to the conclusion that O.P. No. 2 was not given divorce as stated by the petitioner. No document has been produced to show that O.P. No. 2 had renounced or refused to receive any maintenance expenditure from the petitioner. In the attending facts and circumstances, it is held that she is entitled to maintenance under Section 125 of the Cr.P.C. and the Trial Court has held that the petitioner had ousted O.P. Nos. 2 and 3 from the house. It is well settled that a husband has the moral and social obligation to maintain his wife and his minor son, whom he has neglected to maintain. 9. Thus, in the given facts and circumstances, the quantum of maintenance of Rs. 3,000 per month to O.P. No. 2 and Rs. 1,500 per month to O.P. No. 3-Md. Anjar passed by the Principal Judge, Family Court, Ranchi is neither exorbitant or excessive. Accordingly, no reasonable ground is made out warranting interference by this Court in the impugned order. In the result, this revision application stands dismissed.