Bombay High Court
In The High Court Of Judicature At ... vs Unknown on 28 November, 2011
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT B0MBAY,
NAGPUR BENCH : NAGPUR
Criminal Revision Application No. 34 of 2004
Applicant : Alhaj Ezaj Hasan son of Akhtar Hasan, aged about
37 years, Private Labourer, resident of Ward No. 3
Sadiq Colony, Barshitakli, District Akola
versus
Respondents : 1) Smt Shabana Anjum d/o Samsherkhan (Shabana
Anjum Divorcee wife of Alhaj Ezaj Ul Hasan) c/o
Sh. Samsherkhan Hasankhan, aged adult, occ: Household,
Work and Private business, resident of Chaya Nagar,
Amravati.
2) State of Maharashtra
Mr A.I. Sheikh, Advocate for applicant
Mr Badal Lonare, h/f Mr M. K. Pathan, Advocate for respdt no. 1
Mr P. D. Kothari, APP for respondent no. 2
Coram : A. P. Bhangale, J
Dated : 28th November 2011
Oral Judgment
1. By this application, revision petitioner (husband) challenged
legality, propriety and correctness of the impugned order passed by learned
Additional Sessions Judge, Amravati on 23.1.2004 in Criminal Revision No. 10
of 2003 whereby the revision application was allowed and the respondent-
wife was granted monthly maintenance of Rs. 750/- from the date of
application plus costs of Rs. 250/- for the proceedings. Earlier, learned trial
Magistrate who heard an application under Section 125 of the Code of
Criminal Procedure in Misc. Criminal Application No. 231 of 2002, claim of
respondent-wife for maintenance for herself was rejected. However, claim
for maintenance for child was granted in the sum of Rs. 350/- per month from
the date of application plus Rs. 1500/- towards costs of the proceedings.
Aggrieved by refusal to grant maintenance to wife, wife had challenged
refusal to grant maintenance in Criminal Revision No. 10 of 2003 which was
decided by the impugned judgment and order.
2. It is the grievance of the revision applicant that the applicant had
pronounced Talaq (divorce) in accordance with Muslim Law and, therefore,
after divorce, his wife was not entitled to claim maintenance under Section
125 Cr. P. C. It is further submitted that ruling cited in Dagdu Chotu Pathan v.
Rahimbi Dagdu Pathan reported in 2002 (3) Mh. L. J. 602 is not applicable in
the facts and circumstances of the present case on the ground that Talaq was
pronounced as per command of Quaran and, therefore, decision of the Full
Bench was not applicable. It is further submitted that learned Additional
Sessions Judge wrongly observed regarding postal endorsement and
communication sent under postal certificate. According to learned counsel for
revision applicant, the presumption of communication of Talaq ought to have
been drawn considering the refusal to accept notice sent from the husband. It
is, therefore, contended that the impugned judgment and order is improper,
unjust and incorrect.
3.
Learned counsel for respondent-wife submitted that apart from
the Full Bench Judgment referred to in the impugned judgment and order in
Dagdu Pathan's case (supra), Bombay High Court in the ruling of Dilshad
Begaum Ahmadkhan Pathan v. Ahmadkhan Hanifkhan & anr reported in II
(2007) DMC 738 held that valid and legal Talaq ought to be proved by a
factum of pronouncement of Talaq. It is necessary that pronouncement of
Talaq must be proved by sufficient evidence to be considered in the light of
Full Bench decision in Dagdu Pathan's case (supra). In other words,
requirement of law must be met by evidence led on the part of husband
regarding preconditions of arbitration for reconcilliation and communication
of reasons for Talaq. The husband is required to convey reasons for divorce,
appoint arbitrator who resort to conciliation proceedings so as to bring
reconciliation between the parties and failure of such reconciliation to
establish a situation where it was impossible for the marriage to continue.
This is required to be proved as condition precedent for the husband's right to
give Talaq to his wife in accordance with Muslim Law. The requirements of
law are to be satisfied particularly when wife disputes the factum of Talaq or
the effectiveness of Talaq or legality of Talaq in a competent court of law. In
other words, therefore, mere statement made in writing before the Court or in
oral depositions regarding the Talaq having been pronounced sometimes in
the past is not sufficient to hold that the husband has divorced his wife and
such a divorce is in keeping with the dictates of Islam.
4. In the present case, it is contended that one witness by name
Mohammad Faruq was examined in order to establish that he had been to the
house of Samsher Khan (father of respondent-wife) for to fetch her on 4/5
occasions. He also stated that he had no concern with divorce, but in the
same breath, turned around to say that he is eye witness to the divorce. Apart
from this shaky evidence with least credibility , no oral evidence is led of any
independent witness after husband Alhaj Ezaj examined himself to contest the
claim for maintenance.
5. Be that as it may, in Dagdu Chotu Pathan's case (supra), it is held
by the Full Bench of this Court that mere statement made in writing before the
Court or in oral depositions regarding the Talaq having been pronounced
sometimes in the past is not sufficient enough to conclude that the husband
has divorced his wife by pronouncing Talaq and further that such a divorce
was in keeping with the dictates of Islam. Furthermore, witness who is
examined by applicant-husband is not reliable as he has tendency to change
his version in the same breath, first saying that he had no concern with the
divorce and then turning around to state self-contradicting that he had been
eye witness to the divorce.
6. Reference is made to one more ruling in Shabana Bano v. Imran
Khan reported in (2010) 1 SCC 666 regarding object of grant of maintenance
under Section 125 Cr. P. C. in order to submit that wife would be entitled to
claim maintenance under Section 125 Cr. P. C. until she re-marries. In other
words, claim for maintenance is not restricted to Iddat period only. Thus, on
behalf of the respondent-wife, it is contended that even a divorced muslim
woman would be entitled to claim maintenance till she does not remarry. This
is so, considering the fact that Section 125 Cr. P. C. is a beneficial piece of
Legislation and benefit must be accorded to divorced Muslim woman even
assuming that divorce is proved.
7. To counter this submission, learned counsel for the applicant-
husband cited ruling in Kamla Pal and ors v. Samlaprasad reported in 2005 All
MR (Cri) 1958 to contend that wife must prove refusal and neglect on the part
of her husband to claim maintenance under Section 125 Cr. P. C.
8. After going through the rulings cited by respective counsel and
considering the facts and circumstances appearing from the record, it does
appear that revision applicant in this case pleaded divorce as a ground for
avoiding to pay maintenance. He also chose to avoid liability for maintenance
pleading that his wife has independent source of income from tailoring job
and also disputing his ability to earn and pay maintenance. Looking into all
these circumstances, I think, ratio in the ruling in Dagdu Pathan's case (supra)
was attracted and it was rightly applied by learned Additional Sessions Judge,
Amravati so as to grant maintenance allowance.
9.
Learned counsel for the revision applicant then argued that
quantum of maintenance is on higher side since applicant-husband is unable
to pay maintenance as per the impugned judgment and order. He also
submitted that amount of interim maintenance is deposited by husband in the
trial Court, but it was not withdrawn by the wife. According to learned
counsel for respondent-wife, deposit of interim maintenance was directed by
this Court in order to test bonafides of the husband and due to oral direction
from this Court, wife had not applied for withdrawal of the amount deposited.
10. Be that as it may, considering that husband is always at liberty to
bring to the notice of trial Court change in the circumstances, if any, for to
claim alteration in the quantum of maintenance allowance as stated under
the provisions of Section 127 Cr. P. C. Hence, quantum of maintenance
allowance awarded by the impugned judgment and order needs no
interference.
11. For all these circumstances, I do not find any valid ground for
interference in the impugned judgment and order. Revision application is
accordingly dismissed.
A. P. BHANGALE, J
joshi
