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2019 DIGILAW 454 (KAR)

Asma Nusrat v. Mohammed Rafique Gadagkar

2019-02-18

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. Heard the arguments of the revision petitioners counsel and also the counsel for the respondent. 2. This revision petition is filed under section 397 read with section 401 of Cr.P.C. challenging the judgment and order dated 23.2.2011, passed by the Family Court, Belagavi, in Crl .Misc.No.475/2009. 3. The brief facts of the case are that, the revision petitioner herein had filed a petition before the Court below under section 125 of Cr.P.C., claiming maintenance from the respondent to the tune of Rs. 10,000/- each to her and her son, in total an amount of Rs. 20,000/-. 4. The case of the petitioners is that the 1st petitioner herein is the wife of respondent and their marriage was taken place on 28.8.1994 as per Muslim customs. After the marriage they were cordial for some time and she became pregnant and then she was sent to delivery and the 2nd petitioner born in her parental house and after the birth of the 2nd petitioner, the respondent and family members came and assured that they were going to take back her after 40 days, but they did not turn up and hence, her parents with elderly persons of the family, went to Jamat and had conciliation and thereafter petitioner No.1 was sent to the house of respondent and the respondent and their family members started ill-treating her and harassing her and demanded dowry from the parents of petitioner No.1 in terms of kind i.e. , gold and cash and when the petitioner's parents did not satisfy the demand, sent her back to the house of her parents. The matter was referred to Jamat and the same was pending for three years and when the Jamat people directed the petitioner to join the respondent, when she joined the respondent, they did not take back her to the conjugal home and hence she is staying in her parental house from last 13 years and forced to file petition for maintenance since the respondent is not ready and willing to take her back. 5. It is also her case that petitioner No.2 is studying in the school at Belagavi and she is spending money for both tuition fee, computer class fee, cricket club fee and other expenses and it costs about Rs. 5. It is also her case that petitioner No.2 is studying in the school at Belagavi and she is spending money for both tuition fee, computer class fee, cricket club fee and other expenses and it costs about Rs. 10,000/- per month and she is also not having any source of income and she is also required an amount of Rs. 10,000/-, in all Rs. 20,000/-. The contention of the petitioner that the respondent is doing business of gold and having two shops in Durgadbail in New Hubballi and two shops in Old Hubballi and having his own house in Islampur having ground floor and first floor, two plots, etc. ,. Thus the respondent is having sufficient income to maintain the petitioners and he is under bounden duty and matrimonial obligation to provide maintenance. 6. The other contention also that the respondent has already contracted second marriage with Bibi Ayesha from Mundagod about 11 years back and through the 2nd wife also he is having 4 children and hence prayed this Court to grant maintenance. 7. In pursuance of the petition, notice was issued against the respondent and he appeared through counsel and in his objections he contended that the petitioners have suppressed the material facts of conciliation proceedings held by panchas of both the sides and ended in separation after conciliation proceedings were failed and contended that the petitioner is not legally wedded wife of the respondent but she was the legally wedded wife of the respondent and it is admitted that petitioner No.2 is the son of respondent. However, contends that the marital life was cordial only for a period of one year and other allegation that he did not take back her is denied and also denied the ill-treatment and other allegations made in the petition. However admits that matrimonial dispute was referred to the panchas i.e., Jamat but it was pending for three years has been denied. 8. However admits that matrimonial dispute was referred to the panchas i.e., Jamat but it was pending for three years has been denied. 8. The respondent contended in his objection that the conciliation proceedings first time were held on 30.6.1996 before the conciliators of the petitioner i.e. , before Tippu Nagar Jamat and it is resolved that the petitioner should join the respondent and accordingly she joined the respondent to lead marital-life but the petitioner did not lead marital-life with the respondent because she was demanding that the respondent should live separately and when the respondent refused for the same, she has deserted him and did not turn back till this day. It is denied that as per the resolution dated 30.6.1996, both sides conciliators met again on 6.7.1996 and accordingly the respondent agreed in the said meeting before the conciliators and the mother of the petitioner was also present and she abused in filthy language to the conciliators and taken back her daughter and due to the adamant behavior of the petitioner No.1, Jamat people have unanimously decided that conciliation proceedings for reunion could not be worked out. 9. The Jamat meeting was again held on 14.10.1997 and permitted this respondent to enter into second marriage since the petitioner No.1 refused to lead marital-life with the respondent. There were sincere efforts for conciliation at the mediation of Jamat members of both sides and when the question of reunion could not be worked out on that day, the respondent has given talak to the petitioner No.1 before the Jamat members and subsequently he entered into second marriage. The petitioner No.1 accepting the talak given by the respondent, appeared before the Islampur Jamat on 25.3.1998 and taken back all the 'dahej' articles, golden ornaments given in the marriage and accordingly her father has endorsed on the proceedings of Jamat that he has received all the articles and golden ornaments. 10. The petitioner No.1 accepting the talak given by the respondent, appeared before the Islampur Jamat on 25.3.1998 and taken back all the 'dahej' articles, golden ornaments given in the marriage and accordingly her father has endorsed on the proceedings of Jamat that he has received all the articles and golden ornaments. 10. Therefore it is crystal clear that before giving talak by the respondent to the petitioner No.1, conciliation proceedings were initiated by the conciliators and the same was failed and when the petitioner No.1 was not ready and willing to lead her marital-life, the petitioner No.1 accepting and admitting the talak has taken all the articles and the respondent has given legal talak and there exists no relationship of husband and wife and hence she cannot claim maintenance and also contends that the petitioner No.2 is concerned, as per the conciliators decision a sum of Rs. 11,000/- was deposited as fixed deposit in a nationalized bank as agreed by the parties and conciliators and the petitioner No.2 is also not entitled for any maintenance as sought. 11. The respondent denied the avocation and doing the business and also denied his income is Rs. 1,00,000/- per month and he contends that he is working in a goldsmith shop on a monthly salary of Rs. 5,000/- and there is no any source of income except the same and denied the expenditure of 2nd petitioner for his education and other curricular activities and further contended that he is getting monthly salary of Rs. 5,000/- and his income is limited and maintenance claimed is exorbitant and hence he prayed the Court to dismiss the maintenance petition. 12. The Court below recorded the evidence of the petitioner as PW.1 and marked the documents Ex.P.1 to P.7 and the respondent also examined himself as RW.1 and he got marked documents Exs.R.1 to R.7(a). The Court below after hearing the arguments of both the counsels, dismissed the maintenance petition filed by this revision petitioner and being aggrieved by the dismissal of the maintenance petition, the petitioner has preferred this revision petition. 13. The Court below after hearing the arguments of both the counsels, dismissed the maintenance petition filed by this revision petitioner and being aggrieved by the dismissal of the maintenance petition, the petitioner has preferred this revision petition. 13. The revision petitioner in the revision petition has contended that the Court below failed to appreciate both oral and documentary evidence and erroneously came to the conclusion that the petitioner is not entitled for maintenance and further contended that the order does not speak about how the petitioners No.1 and 2 are not entitled for maintenance and nowhere in the order the trial Court has reasoned with respect to maintenance to petitioner No.2. 14. The other contention that the trial Court also failed to note the decisions of the Apex Court and the High Court, wherein it has been held that though the wife was divorced, the divorced wife is also entitled for maintenance and the trial Court failed to consider that whether the alleged divorce was in a valid and recognized manner known to law has not been appreciated and also failed to take note of scope of section 125 of Cr.P.C. The trial Court also failed to note that the minor son of the petitioner is also in need of maintenance and husband is duty bound to maintain him also but the order of the trial Court is silent on this aspect and has not passed any order with respect of the petitioner No.2 who is the son of respondent even though there is no dispute. In any angle the impugned judgment of dismissal is not based on any material on record and the petitioner has no ef ficacious speedy and alternative remedy. Hence approached this Court and prayed this court to set aside the order of the trial Court. 15. In any angle the impugned judgment of dismissal is not based on any material on record and the petitioner has no ef ficacious speedy and alternative remedy. Hence approached this Court and prayed this court to set aside the order of the trial Court. 15. The counsel appearing for the revision petitioner in this petition vehemently contended that the Court below failed to appreciate both oral and documentary evidence and further RW.1 in the cross-examination admits that he is doing the business of gold and avocation is proved and further admits that through the 2nd wife, respondent also got children and in spite of it the Court below failed to award maintenance both in respect of the petitioner No.1 and also the minor petitioner who is the petitioner No.2 and the very impugned order passed by the Court below is one sided and not having taken note of the fact that there was no any valid divorce in accordance with law. 16. In support of his contention the counsel also relied upon the judgment of Shabana Bano vs. Imran Khan, (2010) AIR SC 305 decided on 4.12.2009, reported and brought to the notice of this Court paragraphs No.25 and 27 of the judgment, with regard to proceedings under section 125 of Cr.P.C. are civil in nature and in this judgment even if the Court noticed that there was a divorced woman in the case in question, it was open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. The proceedings under section 125 of Cr.P.C. and claims made under the Act are tried by the same Court and also brought to the notice of this Court paragraph No.27, wherein the Apex Court held that the petition under section 125 of Cr.P.C. would be maintenance before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under section 125 of Cr.P.C. cannot be restricted for the 'iddat' period only. By relying upon this judgment he contends even the divorced wife is also entitled for maintenance and further contended that there is no any divorce in accordance with law and the fact that the 1st petitioner is not remarried is also not disputed and hence the petitioners are entitled for maintenance. 17. By relying upon this judgment he contends even the divorced wife is also entitled for maintenance and further contended that there is no any divorce in accordance with law and the fact that the 1st petitioner is not remarried is also not disputed and hence the petitioners are entitled for maintenance. 17. The respondent's counsel in his arguments he contends that the respondent never refused the petitioner and his son and herself are not interested to join the respondent and she stayed away in the house of her parents house and further contended, talak is given and in the year 1996 itself she left the matrimonial house and living with her parents and maintenance petition is filed after almost 13 years and the respondent is remarried and having children and herself has filed application before the Jamat and the Court below discussed the same in paragraph No.7 of the judgment and hence she is not entitled for any maintenance. 18. The counsel appearing for the petitioner in reply to the arguments contended that her parents are now unable to maintain her and application was filed in the year 2009 itself and she is not remarried and not able to maintain herself and her son and the Court below erred in dismissing the petition. 19. Having heard the arguments of the revision petitioner's counsel and also the counsel for the respondent, this Court has to examine whether the Court below has erred in dismissing the maintenance petition filed by the revision petitioners and whether it requires interference by this Court exercising revisional jurisdiction. 20. On perusal of the factual aspects of the case is concerned, there is no dispute with regard to the fact that the 1st petitioner is the wi fe of the respondent. The respondent also did not deny the relationship with her and he also admits that the 2nd petitioner is his son. 20. On perusal of the factual aspects of the case is concerned, there is no dispute with regard to the fact that the 1st petitioner is the wi fe of the respondent. The respondent also did not deny the relationship with her and he also admits that the 2nd petitioner is his son. The contention of the 1st petitioner before this Court is that, she gave birth to the 2nd petitioner and thereafter the respondent and his family members came and assured that they are going to take her back after 40 days but they did not turn up and hence panchayat was held in the Jamat and she was sent to the house of the respondent and thereafter the respondent and their family members started ill-treating her and harassing her and when there was no alternative, she came back to her parental house. The fact of conciliation was taken place and she was taken back to the matrimonial house is not in dispute. But only contention of the respondent is that the petitioner did not choose to come and join the respondent in the matrimonial house and she voluntarily deserted the respondent. 21. The respondent contends that number of meetings were held in the Jamat and also he did not dispute the fact and he also relied upon certain documents of the proceedings taken place in the Jamat as Ex.R.1 to R.7(a) and in the cross-examination of PW.1, in the line of objections taken, was done and she did not admit the proceedings taken place in the Jamat and further categorically denied the documents Ex.R.1 to R.7(a) and she categorically contended that those documents are created for his convenience. When such being the case, and when the documents are disputed, the respondent did not choose to examine any of the persons who are the part of the said proceedings and when the documents are denied, is it the duty cast upon the respondent to prove the same and the same has not been done. 22. When such being the case, and when the documents are disputed, the respondent did not choose to examine any of the persons who are the part of the said proceedings and when the documents are denied, is it the duty cast upon the respondent to prove the same and the same has not been done. 22. The petitioner has denied the very contention of divorce and main contention is that the divorce is also not in accordance with law and though the respondent claims that he has given notice through Advocate for talak, he has not produced the same before the Court to show that the said notice is served on the petitioner and the petitioner categorically contended that no such notice was issued to her and only the respondent relied upon the documents of Jamat and none of the Jamat members or conciliators have been examined and the same has not been proved. 23. In spite of the said documents are not proved, the Court below accepted the version of the respondent in coming to the conclusion that the petitioner herself deserted and also accepted the version of she was divorced and the Court below failed to take note of the evidentiary value of documents Ex.R.1 to R.7(a) and the very contention of the respondent that the mother of the petitioner abused the conciliators and took the petitioner in the conciliation and other contention that the belongings of the petitioner were taken back by her father and also in the cross-examination of PW.1 she says they might have deposited the amount of Rs. 11,000/- towards the petitioner No.2, but she did not accept any settlement arrived between the parties and when such being the case, the trial Court ought not to have given any weightage to the evidence of the respondent and erred in accepting the documents of the respondent's side which are not proved. 24. The fact that the petitioners are residing in her parental house from last 13 years is not in dispute and also there is no dispute with regard to the fact that the respondent has contracted second marriage and having children through 2nd wife also and the same is stated in the petition itself by the petitioner and also in the cross-examination respondent No.1 categorically admits that he contracted the 2nd marriage in the year 1999 itself . When such being the fact, the Court below ought not to have come to the conclusion that the petitioner herself deserted and when the differences arose within 1 and 11/2 years of marriage and he contracted 2nd marriage in the year 1999 itself and the Court ought not to have expected the petitioner to go and join the respondent and this aspect is also lost sight by the lower Court. 25. Regarding maintenance is concerned, there is no dispute with regard to the fact that she is not married again and further in the cross-examination the respondent has admitted that his son who is the 2nd petitioner is pursuing his education at Belagavi and the petitioner also relied upon the documents Ex.P.3 to P.7 with regard to the school fee receipt, coaching class receipt, cricket coaching receipt, tuition receipt, receipt of social and welfare society, Belagavi , i.e., Ex.P.3 to P.7 and this Court already pointed out that the respondent has admitted that the petitioner No.2 is pursuing his education and further important to note that in the cross-examination he categorically admits that he is running business of jewelry shop, but he claims that the licence is in the name of his 2nd wife and though he contends in the objection that he is working as an employee in the jewelry shop and earning Rs. 5,000/-, he has not produced any documentary proof that he is working as an employee in jewelry shop and he contends he is earning only Rs. 5000/- and in order to substantiate his contention no material is placed before the Court. However the very admission in the cross-examination that jewelry shop licence is standing in his 2nd wife's name and not the case that his wife is running the jewelry shop and also admits that he is having a house at Hubballi . Having considered this aspect also the trial Court ought not to have rejected the maintenance petition and it is not the case of the respondent that the petitioner is earning and having source of income to lead her life and also provide education to the 2nd petitioner. 26. The judgment of the Apex Court also which has been relied upon by the petitioner's counsel is clear that Section 125 of Cr.P.C. proceedings is in civil nature. 26. The judgment of the Apex Court also which has been relied upon by the petitioner's counsel is clear that Section 125 of Cr.P.C. proceedings is in civil nature. Even the divorced woman is entitled for maintenance and though the respondent contends that he has divorced his wife, this Court has already pointed out that the documents which are relied upon by the respondent cannot be accepted and there is no any evidentiary value since the same has not been proved and when such being the case, there is a force in the contention of the petitioner's counsel that the divorce is not in accordance with law and though he claims that he has given divorce notice, no such document is produced for having given talak and this Court do not find any material that the petitioner was divorced in accordance with law and when such being the case and when the petitioner is not having any source of income, it is the bounden duty of the husband to maintain the wife and son who are living separately and the fact that he had also contracted 2nd marriage is also not in dispute. 27. All these aspects have not been looked into by the Court below in right perspective and erroneously accepting the contention of the respondent, proceeded in one sided manner and not discussing the evidence of PW.1 and respondent in toto and arrived to a wrong conclusion that the petitioner is not entitled for maintenance and hence the order impugned is liable to be set aside. 28. Now, with regard to the quantum of maintenance to be payable as there is no dispute that he has contracted the 2nd marriage and living with 2nd wife having four children and at the same time it is the bounden duty of the respondent to maintain his wife and son and it is clear that he is having a house as well as business at Hubballi and though the petitioners have contended that he is having 2-3 shops, no document is placed on record. However RW.1 has admitted in the cross-examination that the shop licence is standing in the name of his 2nd wife and hence it is clear that he is running jewelry business at Hubballi and when such being the case and cost of living also be taken note of while awarding maintenance and admittedly the respondent says that 2nd petitioner is pursuing his education and having considered the same, and also the cost of living, this Court is of the opinion that it is appropriate to award maintenance of Rs. 5,000/- each to the wife and the son who is the 2nd petitioner. The 1s t petitioner is entitled for maintenance throughout her life unless she remarries. The 2nd petitioner who is the son of respondent is also entitled for maintenance till attaining the age of majority at the rate of Rs. 5,000/- per month from the date of petition. 29. In view of the discussions made above, this Court proceed to pass the following: ORDER The revision petition is allowed. The impugned order of dismissal of the petition is set aside. Consequently, the maintenance petition is allowed in part granting maintenance of Rs. 5,000/- ( five thousand rupees) per month each to the petitioners No.1 and 2, respectively, payable from the date of petition. The 2nd petitioner is entitled for maintenance till he attains majority.