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2015 DIGILAW 156 (JHR)

Nasim Ansari v. State of Jharkhand

2015-02-03

AMITAV K.GUPTA

body2015
ORDER :- This revision is directed against the order dated 21.09.2013 passed in Cr. Misc. Petition No. 23 of 2010 by the Principal Judge, Family Court, Dumka, whereby the petitioner-husband was directed to pay the maintenance amount @ of Rs. 2,000/-to O.P. No.2/wife and Rs. 1500/-each to her two minor sons per month. 2. Mr. Durga C. Mishra, learned counsel for the petitioner has submitted that the court below has failed to consider the fact that the petitioner had given 'talak' (divorce) to O.P. No.2 on 13.10.2009. The said talak was communicated through talaknama sent under certificate of posting on 15.10.2009. This has been supported by witnesses namely, O.P.W.1-Nazir Ansari, O.P.W.2-Suraj Ansari and O.P.W.-4 the petitioner himself. It has been argued that in the face of the talak O.P. No.2 is not entitled to maintenance as she can claim maintenance under the provisions of Muslim Woman (Protection of Rights on Divorce) Act, 1986. That in view of the provisions of the said Act the impugned order has been passed without appreciating the fact that the a divorced Muslim women cannot claim maintenance under Section 125 of the Cr.P.C. It is urged that there is no assessment regarding the income of the petitioner thus the order granting of maintenance @ Rs. 2,000/-is exorbitant and excessive. It is submitted that the petitioner had never driven the opposite party out of the house rather she has left the house on her own accord. That there is no just ground for her to live separately from the petitioner. It is contended that O.P. No.2 has 20 bighas of cultivable land and she is running a stationery shop. On the above ground, it is contended that the said order is not sustainable in law or on facts and is fit to be set aside. 3. Mr. Indu Shekhar Gupta, learned counsel for the O.P. No.2 has countered and contended that the petitioner had not filed the talaknama. That the witnesses have made contradictory statements regarding the factum of talak. The petitioner has failed to adduce any evidence that the talaknama was received by O.P. No.2. That there is evidence that the petitioner has solemnized a second marriage with Rinky who was living with him as a concubine. That when the O.P. No.2 protested to such relationship she was driven out of the matrimonial house along with her two minor sons. That there is evidence that the petitioner has solemnized a second marriage with Rinky who was living with him as a concubine. That when the O.P. No.2 protested to such relationship she was driven out of the matrimonial house along with her two minor sons. That O.P. No.2 has no source of income or means to maintain herself and her minor sons that she is dependent on her father, who is a poor man. That the petitioner has agricultural land and has sufficient means of income. 4. Heard. Perused the impugned order. On the factum of divorce or talak the petitioner has examined O.P.W.-1-Nazir Ansari in the court below, in cross-examination the said witness has deposed that the present case was instituted for divorce and he had seen the O.P. No.2 about three years back and he has no knowledge about the matter between the husband and wife. This witness does not know when the O.P. No.2 was married with the petitioner. The court below has rightly held that O.P.W.-1 does not have any knowledge about the facts of the case. O.P.W.2-Suraj Ansari has deposed that he does not know when the petitioner and O.P. No.2 were married. That he was not present at the time of marriage. In cross-examination, he stated that he was present at the time of talak where Rafique Ansari, Sultan Ansari, Riyasat Ansari and Munna Ansari were present, but no rituals were performed. That the petitioner pronounced talak three times, however no 'dain meher' was paid and he had reached the meeting at the eleventh hour. He has further stated that the petitioner and the O.P. No.2 have only one son and denied that they have two sons. O.P.W.-3 Riyasat Ansari is the brother-in-law of the petitioner-husband. He has stated that one son was born to Rahima from the wedlock. He does not know about the second son. This shows that he is suppressing the fact of birth of two sons. O.P.W.4-Nasim Ansari is the petitioner himself and he has deposed that he cannot say about day of convening of panchyat neither he had been to his sasural for bidai of O.P. No.2. He was allegedly assaulted by the relations of the O.P. No.2, but he has admitted that he did not file any case. O.P.W.4-Nasim Ansari is the petitioner himself and he has deposed that he cannot say about day of convening of panchyat neither he had been to his sasural for bidai of O.P. No.2. He was allegedly assaulted by the relations of the O.P. No.2, but he has admitted that he did not file any case. He has deposed that he had divorced O.P. No.2 by pronouncing three talaks then he had sent talaknama but he did not perform any rituals and only one son was born out of the wedlock. The statement of the witness reveals that he is suppressing the fact regarding the second son. He has admitted the Panchayati but he does not know the date of the panchyati neither he has produced the talaknama. The court below rightly held that the statement of the witnesses are inconsistent and contradictory to each other and is not reliable. The court below has also considered the deposition of O.P. No.2 in G.R. Case No. 270 of 2010 corresponding to T.R. No. 327 of 2013 wherein the O.P. No.2 has denied the factum of divorce. The said document was produced by the petitioner. The document supports the case of O.P. No.2-wife rather than the case of the petitioner. 5. The decision in the case of reported in 2010 (1) JCR 59 (SC) has been cited wherein in the Hon'ble Apex Court has held that “even if a Muslim woman has been divorced, she will be entitled to claim maintenance from her husband under Section 125 of the Cr. P.C after expiry of period of IDDAT also as long as she does not remarry.” In view the said decision even if the contention of the learned counsel for the petitioner is believed to be true then also the petitioner is bound to pay the maintenance to his wife under the provisions of Section 125 of the Cr.P.C. 6. The argument has been advanced on behalf of the petitioner that the petitioner does not have any sufficient means to pay the maintenance amount and the court below has neither given any finding and no evidence has been brought on record to support the contention of O.P that the petitioner is a labour contractor and he has 8 bighas of cultivable lands and he earns of Rs. 10,000/- per month. 10,000/- per month. On perusal of the testimony of witnesses, it is evident that O.P.W.-1 has stated that he does not know what the petitioner does. O.P.W.-2 stated that the petitioner does not do any work. O.P.W.-3 in para 21 testified that the petitioner goes out of the State for work. The petitioner as O.P.W.-4 has admitted that he has one bigha of cultivable land. He has not filed any paper in the court below. It clearly emerges that the petitioner has admitted that he owns one bigha of cultivable land and the statement of P.Ws. 1, 2 & 3 not reliable. It is noticed that though petitioner has one bigha of land and he stated that he would file the papers but he did not file any paper. Thus an inference can be drawn that he has suppressed the details of his landed property. It is also admitted that the O.P. No.2 has no source of income and is dependent upon her father for maintaining herself and her sons. The petitioner has not paid a single farthing nor cared to provide the expenses for his minor sons. Thus the contention of learned counsel is not sustainable in the backdrop of the evidence on record. 7. The third contention of the learned counsel for the petitioner there was no just ground for O.P. No.2 to reside separately is not tenable because it is admitted that the O.P. No.2 had filed a case under Section 498A of the I.P.C. against the petitioner which has also been admitted by the petitioner. It is also alleged that the petitioner has kept one Rinki as concubine with whom he has solemnized marriage. He had also fled away from the Panchyat which was convened by the father of O.P. No.2. The deposition of O.P. has been filed as Ext.B by the petitioner and this supports the case of O.P./ wife. The petitioner has not denied the averment that he has solemnized a second marriage. The evidence discussed prove that there is sufficient cause and just ground for O.P./wife to reside separately. In fact the evidence on record which has been discussed by the court below shows that the O.P. No.2 was subjected to assault and was forced to leave the matrimonial house by the petitioner. 8. The evidence discussed prove that there is sufficient cause and just ground for O.P./wife to reside separately. In fact the evidence on record which has been discussed by the court below shows that the O.P. No.2 was subjected to assault and was forced to leave the matrimonial house by the petitioner. 8. The object and scope of the provisions of Section 125 of the Cr.P.C is not to punish a person who has neglected his wife rather the provision envisages that the dependents are not forced to live a life of vagrancy or beggary. The petitioner has neglected O.P/wife and his minor sons. He cannot shirk his responsibility and his moral and social obligation as a husband and father in providing the expenses for their maintenance. 9. In the backdrop of the discussion made above impugned order does not require any interference by this Court. 10. In the result the revision is hereby dismissed.